Planning going from civil to criminal ? - Public forum - Planning Advisory Service (PAS)

As it has been a while since I worked in enforcment i cant recal the legislation but not all planning breaches are a civil matter unauthorised works to a TPO tree, listed building and unauthorised advert are all criminal offences.

I don't know if there's an official answer to this, but I've always assumed it's because planning legislation is so wide-ranging, complex, and sometimes ambiguous and open to interpretation, that it's all too easy for people to find themselves in breach of planning control inadvertently. In my experience the vast majority of breaches of planning control do not occur knowingly or deliberately, and furthermore a majority cause no material harm and/or are resolvable. In these circumstances, for householders and small businesses etc to be guilty of a criminal offence and liable to potential prosecution proceedings from the outset, would not be reasonable - hence the process of a breach becoming an offence only after a failure to comply with a notice, which should only be issued if and when really necessary.

I think ordinary people have enough to cope with as it is without facing regulatory arbitrage.

The Review of the Planning Enforcement System in England September 2002 Consultation Document stated about criminalisation: - 4.9 The Planning Green Paper raised the question of whether there was a case for reviewing existing law under which developing without planning consent or in breach of a consent which has been granted is not an offence. The proposition is that unauthorised development should be an immediate offence and that the offence should be punishable regardless of whether permission is subsequently granted or of the steps taken to remedy it.Any extension of the criminal law needs to be very clearly justified. Criminalisation was last considered, and comprehensively rejected, in the Parliamentary discussions of what became the Planning and Compensation Act 1991. 4.10 In favour of such an approach is that it would clarify the uncertainty about the current status of unauthorized development. This would have very real presentational advantages, sending a clear signal that development without permission will not be tolerated. And it would provide a means to tackle short-lived breaches effectively, and provide a stronger deterrent. 4.11 Against such an approach is first that the margins between lawful and unlawful development are not clear-cut. There is ‘greying’ at the edges – the system provides for permitted development rights, the accrual of lawfulness over time, questions as to when a change of use is material, the nature of ancillary uses, and so on. Whilst these help to ensure that the planning system as a whole is not burdened with unnecessary regulation, they inevitably introduce elements of uncertainty. Under the present arrangements, the onus is on an appellant/offender to prove, on the balance of probability, that there has been no breach because what he is alleged to have done has either not taken place or is lawful. Criminalisation would shift the burden of proof from the appellant/offender to the local planning authority, who, as in any other criminal proceedings, would need to prove ‘beyond reasonable doubt’ that a breach had occurred. Given the complex nature of the planning system and the reliance which may need to be placed on the precise nature of the planning history of a particular site, satisfying the criminal burden of proof may prove extremely difficult and therefore make enforcement less rather than more effective. Fewer convictions would serve only to undermine confidence in the system. 4.12 Secondly, criminalisation would encompass all breaches of planning control, no matter how trivial. Whilst it might be argued that it would be possible to distinguish certain breaches as being more significant than others, for example by reference to terms such as ‘persistent’, ‘flagrant’ or ‘serious’, to do so would present very real difficulties and introduce further uncertainty. Without such caveats even someone who unwittingly committed a very minor breach of planning control would find that they had a criminal record. 4.13 And, thirdly, the Government does not believe that Magistrates Courts are a suitable forum within which to argue the fine technicalities of planning legislation; the additional caseload would overburden the Magistrates Courts. Jurisdiction on appeals was removed from Magistrates over 40 years ago because the subject matter was seen as being too specialised for a general Court to deal with. Magistrates are not equipped to deal with matters of planning judgement. There would be a risk to the clarity and fairness of the system. The Planning Inspectorate on the other hand has a pool of knowledge, experience and expertise on which to draw. 4.14 The Government therefore believes that criminalisation would be an inappropriate and disproportionate response. Criminalisation seems too draconian a penalty given the minor and often unwitting nature of the vast majority of breaches of planning control. It was decided not to crimininalise at that time. I believe this was the last time it was considered.

I think the simple answer is that it would immediately reverse the burden of proof in planning appeals. With the current civil arrangements it is for the appellant to proof that the alleged breach hasn't happened, does not represent a breach, is immune by passage of time, while if it were the other way round it would be for the LPA to prove that there was a breach. As stated elsewhere planning legislation is so horribly complex that this would only make matters worse.

Thanks all. You are a great help. This question arose in a conversation with a council keen to encourage applicants to apply in advance - or to put it another way to "disadvantage" people failing to apply for consent at the appropriate time. I'm not aware of any sensible way (apart from pointing out the increased risk of building without consent) that councils can do this. Anything I've missed ?