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What COVID-19 means for enforcement: FAQs

27.04.2020

On this page we will post short answers to some frequently asked questions that have emerged from the webinar What COVID-19 means for enforcement on 23 April 2020.

Please note that none of the below constitutes legal advice and should not be relied upon as such. 

1. Should LPAs made additional checks before serving notices bearing in mind PSED and HRA issues, and the risk that the individual is unwell?

In short, probably yes, to ensure the individual served is reasonably capable of responding in the time given by the notice in question. In some cases this will be obvious and may not impose an additional burden on the LPA. However it would be worth routinely addressing this question with covid-19 implications in mind. Planners and lawyers are generally offering a full service remotely, so in many cases the covid-19 environment will not prevent an individual obtaining timely advice – and the suggestion in the webinar, that LPAs correspond by email in parallel to statutory requirements as to service, will assist with this.

If difficulties are only raised after service of the notice, it may be necessary to show some flexibility in terms of the timing of a response, varying the notice where appropriate.

2. Will there be an overall extension to all notices such as PCNs etc?

At present there is no automatic extension of time although some are asking for it. The Cornerstone Planning Bulletin is tracking and reporting on new legislation and guidance week by week

3. How will PINS deal with ongoing appeals and planned inspections?

This remains uncertain, although site visits have been suspended for the time being, and proposals for remote inquiries are still under development. The Cornerstone Planning Bulletin is tracking and reporting on progress with this.

The backlog and delays which are accumulating within the appeal process are referred to by Jack Parker in the webinar – with suggestions for alternative ways of resolving enforcement disputes in the form of third party mediation and, in urgent cases, via injunction.

4. Are there any specific implications for Wales?

Not at the present time, although some of the legal instruments are different, the principles are similar for the subjects we covered.

5. Will it be said that breaches have been concealed during this period?

To keep the length of the webinar manageable, we only discussed the headline time limits of 4 and 10 years within s171B. A Planning Enforcement Order is made by the Magistrates Court only if it is satisfied that the apparent breach has been deliberately concealed [s171BC].

We see no reason to think that the way sites are operated during covid-19 restrictions is likely to be interpreted by LPAs as concealment of a breach. However, this will depend on the evidence specific to a given case. The burden of proof lies with the LPA on the balance of probabilities.

6. What should be the approach of LPAs to enforcing a breach of condition preventing change of use to allow hot food takeaways/deliveries?

As ever the touchstone for enforcement is expediency, and this requires the consideration of all relevant factors – including the new Class DA permitted development rights conferred by SI 2020 / 330.

However, the strict legal position is that the grant of planning permission conferred generally by the new class DA does not permit development contrary to a condition already imposed. This may or may not have been an error on the Government's part, but many are seeking clarity on this point – either in guidance or (preferably) further legislation.

Meanwhile, LPAs are bound to look at the facts of the particular case in question before issuing enforcement proceedings. Is there any harm being caused at the present time? Can it be managed without enforcement action? It may be a case for correspondence or, if necessary, a PCN to ensure that the operator's intentions are stated clearly.

7. Can direct action continue where it was already "in process" beforehand?

There is no reason why not, provided all concerned work safely (including in the covid-19 sense, observing social distancing and other measures designed to safeguard the health and wellbeing of staff).