MP introduces bill to make unauthorised development without permission a criminal offence

You may have noticed that there has been a fair bit of unauthorised development occurring in Waverley for many years. 

Now a Tory backbench MP has introduced a private member’s bill in the House of Commons to “make unauthorised development without planning permission” a criminal offence and “prohibit retrospective planning applications”. 

WOW!  We can’t see that ever getting onto the statute books.

In June, Gareth Bacon, MP for Orpington, put forward the measure to make unauthorised development a criminal offence. 

Only a few months after Waverley’s Chief Planning Officer Zac Ellwood suggested that ‘Your Waverley’s Executive could consider not bothering with an enforcement function in the future! Is ‘ Your Waverley’s new leader facing his first major challenge?

Speaking in Parliament, Bacon said that the purpose of the bill is to “ensure that everyone who engages with the planning system is on a level playing field and follows the same procedures” and “remove remaining permissible grounds for unauthorised developments”.

“Regrettably, in the current planning system, there are loopholes that are all too frequently exploited and, to ensure fairness, it is important that they are closed,” said Bacon. 

According to Kingsley Smith Solicitors, a planning breach is not a criminal offence under current planning rules, but it is illegal to fail to comply with an enforcement notice unless a successful appeal is brought against it.

“While there are a range of enforcement powers open to local authorities, including enforcement, contravention and stop notices, they do not appear to be a sufficient deterrent,” said Bacon, who added that getting to the point of failure to comply with an enforcement notice is “rare” and “very often an overly long and costly process”.

“Too often, people are gaming the system by proceeding with development work, sometimes on a large scale, without having first received or even applied for planning permission.“Those engaging in such practices are gambling that, even if the local authority becomes aware of an unauthorised development, if the development is sufficiently advanced, it will prove too time-consuming and costly for the local authority to do much about it.”

Bacon cited an example of unauthorised development on Wheatshead Hill – a green belt site in his own constituency of Orpington  – where “a large area of wooded land has been cleared, six mobile homes have been installed and further work is continuing”. “Bromley Council was eventually able to obtain a court injunction, but work on the site has continued unabated.”

Bacon also brought forward a measure to prohibit the use of retrospective planning applications which can, under section 73A of the Town and Country Planning Act 1990, be considered in the same way as a normal planning application for works or a change of use that has already been carried out. 

The MP said that one of the problems is that these applications can “attract a lot of public attention”, which “greatly increase the workload of the relevant case officer”, but the “real cost is the fact that the concept exists at all” as it “encourages unauthorised development”.

“The evidence is overwhelming that, on a large number of occasions, developers believe that once development is in place they are more likely to get planning permission. Indeed, some applicants deliberately draw out a situation where they know enforcement action is inevitable, knowing that they will have a right of appeal if it is refused.”

 Government data from March 2021 shows that, in the previous year across England, just under 3,000 enforcement notices were issued, 3,500 planning contravention notices were served, and 49 injunctions were granted by a county court or the High Court. 

The bill will be read for the second time on Friday 3 December.

The success of private members’ bills is low, with “a minority” becoming law, but according to UK Parliament, “by creating publicity around an issue, they may affect legislation indirectly”.

In April, Paul Holmes, MP for Eastleigh, presented a private members bill in the Commons that would prevent local authorities from giving planning approval to their applications for housing developments if they were over a specific size or if residents objected.

In June, Dr Ben Spencer, MP for Runnymede and Weybridge, presented a private member’s bill in the Commons to create a national register of people who have committed planning offences or breached controls and to introduce tougher penalties for such wrongdoers.