State of play

RCJ portrait 146x219David Merson analyses a High Court ruling on rarely used powers for local planning authorities to act in cases where land and buildings are adversely affecting on the amenity of the neighbourhood.

The High Court (Mr Justice Leggatt) on appeal by way of case stated from the Crown Court has given guidance on the construction of s. 215 of the Town and Country Planning Act 1990 (as amended) in the recent case of R (Alsop) v Derbyshire Dales District Council [2012] EWHC 3562 (Admin).

There have not been many cases over the years dealing with the provisions or scope of Chapter II Part VII of the 1990 Act which for those not in the know deals with the state of land and its adverse affect on the amenity of the neighbourhood. This is in part because LPAs have generally been slow to rely on the provisions and even slower to use the self-help powers in default.

For those not in the know the provisions broadly allow for the following:

Section 215

Section 215 provides the power in a local planning authority (LPA) to require the proper maintenance of land and buildings. This allows a LPA, if it appears to it that the amenity of a part of its area, or of an adjoining area, is adversely affected by the condition of land in its area, to serve on the owner and occupier of the land a notice requiring such steps for remedying the condition of the land or buildings as may be specified in the notice to be taken within such period as may be so specified. The notice takes effect at the end of such period as may be specified in the notice which shall not be less than 28 days after the service of the notice.

Section 216

Section 216 provides the penalty for non-compliance with the s. 215 notice so that if any owner or occupier of the land on whom the notice was served fails to take the steps required by the notice within the period specified in it for compliance with it, he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale (currently £1,000.00).

There are provisions which deal with the position where either the owner or occupier changes between service and the end of the compliance period and the new owner or occupier has failed to comply in which case they may be convicted and the original defendant acquitted. There are also provisions for continuing offences and penalty for each day following first conviction on which any of the requirements of the notice remain unfulfilled.

Section 217

Section 217 provides for an appeal to magistrates’ court against the service of the s. 215 notice at any time within the period specified in the notice as the period at the end of which it is to take effect. Appeal against the notice may be on any of the following grounds:

(a) that the condition of the land to which the notice relates does not adversely affect the amenity of any part of the area of the LPA which served the notice, or of any adjoining area;

(b) that the condition of the land to which the notice relates is attributable to, and such as results in the ordinary course of events from, the carrying on of operations or a use of land which is not in contravention of planning control;

(c) that the requirements of the notice exceed what is necessary for preventing the condition of the land from adversely affecting the amenity of any part of the area of the LPA which served the notice, or of any adjoining area; or

(d) that the period specified in the notice as the period within which any steps required by the notice are to be taken falls short of what should reasonably be allowed.

The s. 215 notice has no effect pending the final determination or withdrawal of the appeal and on such an appeal the magistrates’ court may correct any informality, defect or error in the notice if satisfied that the informality, defect or error is not material. On the determination of such an appeal the magistrates’ court shall give directions for giving effect to their determination, including, where appropriate, directions for quashing the notice or for varying the terms of the notice in favour of the appellant.

Where any person has appealed to a magistrates’ court under this section against a notice, neither that person nor any other shall be entitled, in any other proceedings instituted after the making of the appeal, to claim that the notice was not duly served on the person who appealed. Further appeal to the Crown Court is provided under s. 218.

The LPA may under s. 219 enter the land and take the steps required by the notice, and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so including the charging on the land of any expenses recoverable by it under the provision.

In this particular case, the LPA required the landowner to remove agricultural trailers from a field facing onto a conservation area. The LPA did not in fact object to the trailers themselves, but to a "lurid face" painted on the side of one of them. This position was not clear from a reading of the notice and when the council’s real intentions were ascertained the position was easily remedied. It was also suggested that it would have been open to the LPA to use either it enforcement notice powers to complain about the unauthorised or its discontinuance powers to stop what was authorised (subject to the payment of the necessary compensation).

The High Court held that s. 215 did not give the Secretary of State power to issue a notice that:

  • Required the cessation of use of land which did not, and was not said to, contravene planning control of development of land. Indeed the judge added (paragraph 28) that s. 217(1)(b) is also entirely consistent with the fact that the Act provides, in s. 102, a different power namely discontinuance which is applicable in circumstances where the relevant use of the land is lawful and it would cut across s. 102 (read in conjunction with s. 115 which provides for compensation where an order is made for a previoulsy lawful use to be discontinued) if s. 215 could be construed in a way which allowed s. 215 to be used for such a purpose.
  • Failed to identify the substance of the mischief at which it was directed especially as it is all the more important that those identification requirements be satisfied and they are all the more clearly to be applied in circumstances where failure to take steps required by a notice under s. 215 is a criminal offence (paragraph 30). 

Although the position was briefly canvassed before the court I do not believe that there is any prospect of an appeal by virtue of s. 28A Senior Courts Act 1981.

David Merson is Head of Planning & Environment at Steeles Law LLP. He can be contacted on 020 7421 1720 or by This email address is being protected from spambots. You need JavaScript enabled to view it.. You can also find David's blog at Planning Law and much more.