Change the law to give councils more effective powers to deal with intentional unauthorised development, district tells minister

This follows a high-profile case at Sheering Mill Lane in Sawbridgeworth over the August bank holiday weekend and “repeated incidents elsewhere in the district over the past seven years”.

The Leader of the local authority, Cllr Ben Crystall, has written to the Secretary of State for Housing, Communities and Local Government following the recent incident, which saw East Herts subsequently obtain an interim High Court injunction in a bid to stop the work.

In the letter to Angela Rayner, East Herts’ Leader said that the council’s experience is that recent changes to the National Planning Policy Framework (NPPF), which provide that the decision-maker should give significant weight to the harm caused by development which has been undertaken intentionally without planning permission, “do not go far enough to address the practical difficulties faced by local planning authorities”.

Cllr Crystall wrote: “The issue is not that intentional unauthorised development is insufficiently recognised as a planning consideration. The problem is that a retrospective planning application can still be made, and planning permission can still be granted where other planning matters are considered to outweigh the harm arising from the intentional breach.

“This can leave councils in the difficult position of having to determine whether to regularise a situation which has deliberately been created without planning permission in the first place.”

He added that East Herts has had to commit significant officer and legal resources to responding to these situations, including taking urgent enforcement action and, in a number of cases, seeking out-of-hours injunctions.

Cllr Crystall said that the council had also experienced situations where, following planning appeals related to intentional unauthorised development, it had had to implement planning conditions imposed by the Planning Inspectorate (PINS) “which aren’t workable”.

He wrote: “Fundamental planning matters such as drainage have not been resolved when such matters should have been dealt with from the outset.”

East Herts’ Leader suggested that the various cases demonstrated the practical limitations of the current system. “Once an unauthorised site has been established, the Council can face a complex combination of planning, enforcement, human rights and equality considerations. The longer the situation continues, the more difficult and resource-intensive it can become to resolve.”

In terms of legislative changes, Cllr Crystall called on the Government to consider:

1. A stronger statutory presumption against retrospective permission, with the starting position that retrospective planning permission should not be granted. “This would help remove the potential incentive to 'develop first and apply later' whilst retaining appropriate safeguards in relation to human rights, equality duties and individual circumstances.”
2. Stronger early intervention powers. This would include strengthened and more flexible temporary stop notice powers. “Consideration should also be given to whether additional criminal sanctions or enforcement mechanisms are required where Temporary Stop Notices or injunctions are deliberately breached.”
3. A fast-track enforcement and appeal process. Consideration should be given to a priority route for serious cases of intentional unauthorised development.
4. A review of the Planning Inspectorate’s approach to retrospective Gypsy and Traveller applications.  “The routine use of long-form conditions can leave significant matters to be resolved by local planning authorities after permission has been granted, rather than being properly addressed through the appeal. Drainage is a clear example.”
5. Improved access to injunctions. The Government should review the cost, evidential and procedural barriers faced by councils seeking injunctions.
6. Stronger powers to deal with repeated breaches. “Councils should have more effective mechanisms for dealing with repeated or continuing intentional unauthorised development, particularly where previous enforcement action or injunctions have already been required.”

In his letter, Cllr Crystall said East Herts “fully recognises that effective enforcement must operate alongside the provision of sufficient authorised Gypsy and Traveller accommodation. There is a legitimate need for councils to plan positively for this accommodation and to ensure that identified needs can be met through the planning system.

“However, the existence of accommodation need should not mean that a council is unable to take effective action where development is deliberately undertaken without permission.”

Cllr Crystall asked the Government to consider whether amendments to the Town and Country Planning Act 1990 and associated legislation are now required to complement the strengthened NPPF provisions.

“The recent NPPF changes are an important and welcome recognition of the problem. However, East Herts Council's experience over a number of years demonstrates that policy changes alone cannot resolve the practical enforcement difficulties created when development is deliberately undertaken without permission.”