How to avoid temporary stop notice headaches

We recently blogged about the need for Local Planning Authorities to assess their enforcement practices and for developers to beware common listed building enforcement pitfalls.

Since then, we have advised on a case where a Local Planning Authority was forced to withdraw its prosecution for breach of a temporary stop notice, because it had been served on someone not capable of being served and therefore not capable of being guilty of a breach. This further highlights the need for Authorities to take care when issuing statutory notices and trying to prosecute for an alleged breach.

Who can be served with a temporary stop notice?

Sub-section 171E(4) of the Town and Country Planning Act 1990 provides that a temporary stop notice can be served on any of the following:

• (a)  the person who the authority think is carrying on the activity;
• (b)  a person who the authority think is an occupier of the land;
• (c)  a person who the authority think has an interest in the land.

We recently advised a planning consultant who was advising a landowner. The planning consultant (like most agents or consultants representing a landowner/developer) did not have an interest in the land, was not occupying the land and was not carrying out any activity on the land. Even though the Council was aware of this, not only did they serve the temporary stop notice on the consultant, they then decided to prosecute the consultant for breach of the Notice.

It is normal for Councils to send statutory notices to those who may be connected in some way to a site. Highlighting breaches of planning to advisors and mortgagees is an important and useful step in bringing attention to a problem which often helps to resolve issues quickly. However, sending a copy for information say to a planning consultant, is very different from serving a statutory notice on such a person.

The distress of being wrongly charged with a criminal offence is considerable. Local Authority prosecutors are required to follow the Code for Crown Prosecutors. The Code clearly states “It is the duty of prosecutors to make sure that the right person is prosecuted for the right offence” on the “prosecutor’s objective assessment of the evidence“. A statutory notice served on the wrong person does not satisfy those tests.

What can we take from this?

The risks to the public purse can be considerable if wrongly issued planning notices have to be withdrawn. The risk to a wrongly served party is being convicted of an offence.

Councils should take care when issuing statutory notices; they should check the legislative criteria before serving notices (i.e. how to serve, who to serve upon, when to serve etc).

Prosecuting Authorities should carefully review the allegations and the supporting evidence before laying charges.

If you are served with a temporary stop notice or any other statutory notice, check if you should have been. If you think the Council has got it wrong, tell them in writing as soon as possible and explain why. If you ignore it, you could find yourself being charged with a criminal offence.

The key to avoiding stress and unnecessary costs, is early engagement. As is often said, it’s always good to talk.