Last month we wrote about the start of the effect of the coronavirus on planning enforcement. This month we build on the theme and specifically cover the issuing of enforcement notices. 

Despite, or perhaps indeed because of these strange times, it remains necessary to take planning enforcement action; planning harm may be felt more acutely than ever before. But issuing enforcement notices in these times bring its own challenges. 

Site visits are difficult. During lockdown very few enforcement officers are continuing to enter properties. Some do drive-by visits, others exclusively conduct desktop investigations. Some planning enforcement officers are redeployed to other council services, or furloughed. The extent to which enforcement action can be taken without gaining access to a property is a decision to be made on a case by case basis. But in many cases it would still be possible for LPAs to conclude investigations and recommend enforcement action.

The authorisation of enforcement notices need not be by ink signature on a paper report. In practice nowadays many LPAs prepare electronic reports and notices are authorised electronically. The usual rules apply. For example, ensure you save all electronic authorisations into a filing system, be clear on processes for version control, and ensure the person authorising the issue of a notice is permitted by the Council’s constitution or scheme of delegation. Where your LPA has not already adapted to an electronic way of working, now may be the time to start. Obviously with the support of your management and IT team! 

Ensure your s188 register is updated with new enforcement notices and that the register remains open for inspection, as required by legislation. 

Service of notices by means of personal service in-borough remains best practice. In most cases personal service can be effected without breaking lockdown or social distancing restrictions. Where notices are served by recorded delivery, officers need to ensure there is a procedure in place for possible returned recorded delivery items. With fewer staff going into the Council office a procedure should be put in place so returned post is brought to the attention of officers as soon as possible. Note that sending enforcement notices by email is not ‘service’ but it is good practice to alert a landowner/interested party of the existence of a notice by sending them a copy if their email address is known. 

Appreciating that landowners and others with an interest in the property are likely to be personally and financially affected by covid-19, my personal view is that it is appropriate to allow additional time for enforcement notices become effective, i.e. the date before which an appeal needs to be submitted. 

LPAs might also consider the impact of covid-19 on time for compliance with notices. This can be done by allowing additional time for compliance within the body of the notice, or could allow additional time at some point in future under the provisions of s173A(1) TCPA 1990. Make sure that all extensions of time are authorised by someone with authority so to do. 

These are only a few pointers from our experience in the last month. No doubt the new normal will raise further challenges but also amplify the need for effective planning enforcement. 

Stay safe.