Planning & the Environment

Intentional unauthorised development – new guidance

Policy Change

On 31 August 2015, the then Department of Communities and Local Government Chief Planner (and now interim Chief Executive of the Planning Inspectorate), Steve Quartermain, sent a letter to Chief Planning Officers which enclosed a statement which sets out revisions to National Planning Policy to make intentional unauthorised development a “material consideration” when determining appeals and retrospective planning applications. The policy applies to all new planning applications and appeals received from 31 August 2015. The statement does not define what intentional unauthorised development is. The only explanation given is that developing land without prior authorisation prevents measures being taken to mitigate or limit the harm that would be caused and that taking enforcement action against unauthorised development costs Local Planning Authorities (LPAs) time and money.

The Planning Inspectorate will monitor all appeal decisions involving unauthorised development in the Green Belt in order to assess implementation of the policy. It is also likely that a proportion of appeals which involve unauthorised development in the Green Belt will be recovered for the Secretary of State to determine himself “to enable him to illustrate how he would like his policy to apply in practice”.

At the same time, the letter confirmed that the Government has cancelled the Guide to Effective Use of Enforcement Powers Part 1 (2006) and Part 2 (2007), which concerned unauthorised encampments and the unauthorised development of caravan sites, and the Good Practice Guide to Designing Gypsy and Traveller Sites (2008).

Effect

The practicalities of the tightened policy are not clear. LPA Enforcement Officers may struggle to prove that someone intentionally commenced an unauthorised development unless they admit to it or continue with it after being warned that it is unacceptable. Another possibility is that a developer’s past conduct may be taken into account in determining intention, but this would go against the principle of deciding each application on its own merits.

Allowing LPAs and Planning Inspectors to treat a deliberate intention to flout planning rules as a material consideration may lead to more pressure to take enforcement action. It is also clear that the policy applies to retrospective planning applications, with the letter suggesting that “personal circumstances and unmet need” are unlikely to outweigh harm to the Green Belt when weighing up whether very special circumstances apply.

While the guidance seems to give LPAs more ammunition to refuse applications following rogue demolitions, including community pubs cleared for new housing schemes, the change comes against the backdrop of alterations to gypsy and traveller policy and can potentially be seen as being made primarily to deal with unauthorised traveller and gypsy development in the Green Belt. The fact that the Good Practice Guides which were cancelled at the same time all concerned gypsy and traveller development further points to this being a policy statement intended primarily to deal with unauthorised gypsy and traveller sites in the Green Belt.

The letter was sent a day after the Government published a policy document that redefines “traveller” in planning terms to exclude those who no longer travel permanently. This is likely to prove a contentious change, particularly in the case of those who have given up travelling permanently for reasons of health, education or old age and who previously were required to be treated in the same way as those who continue to travel.

At the same time the Government’s planning policy for traveller sites was amended to remove the requirement for Local Authorities to provide sites for those evicted from unauthorised encampments and to restrict the circumstances in which a lack of a five year supply of traveller sites will be a material consideration in deciding whether to grant temporary planning permission for sites.

Comment

Although the policy change may be directed at unauthorised gypsy and traveller sites in the Green Belt, the effects are likely to be felt more widely because they are intended to cover all intentional unauthorised development. The lack of any definition of “intentional” means that those who thought they did not require planning permission, or where there was a genuine disagreement with an LPA as to whether planning permission was required, particularly where a response from an LPA had been delayed, and development had commenced on the basis that the lack of a response had been interpreted to mean there was no objection to development, could be caught out by these provisions.

The possibility raised in the statement that the Secretary of State will determine a proportion of the Green Belt cases himself in order to make it clear to all how the policy is to be applied seems to fly in the face of the long-established reasons for “call in” and of the Government’s professed commitment to localism. As it is ultimately for the Courts to interpret policy, it seems reasonable to expect a High Court challenge to the Secretary of State’s application of policy not long after the first decisions taken by the Secretary of State are issued.

The policy is to be laid before Parliament as a Ministerial Written Statement when Parliament returns in the Autumn. This is the same process that was roundly criticised by the High Court when it quashed the “small scheme exceptions policy” in the West Berkshire District Council case. It remains to be seen whether anyone will challenge this policy in the same way.