Heritage Cases on Enforcement Registers in England

This article was created by The Institute of Historic Building Conservation (IHBC). It was written by Bob Kindred MBE BA IHBC MRTPI and originally published in July 2016.The original article and all Guidance and Research notes can be seen on the IHBC Toolbox website.

Executive Summary

This Note concerns itself with the variable standards in the presentation and public access to the heritage content of planning enforcement registers. In many instances procedural arrangements appear to fall short of best practice.

While local authority heritage specialists may not necessarily have control over the arrangements for their enforcement registers they should be aware of the where shortcomings and the implications for good heritage management and proper public scrutiny. It is hoped that this analysis will encourage better arrangements where necessary.

Overview

Local planning authorities are obliged to provide an enforcement register under Section 188 of the Planning Act 1990. Government advice is clear that details of every enforcement notice issued should be entered in the register as soon as possible, so that the authority can forestall a claim by anyone cited in enforcement action that they were unaware of the action (because the notice was not entered in the register), or that a copy of the notice was not formally served; or claim to be unaware of its existence. [1]

As some authorities had already been maintaining an enforcement register prior to the requirement under the Act, no additional good practice guidance appears to have been thought necessary. Consequently widely differing approaches to compliance with the terms of Section 188 were adopted particularly the format of registers and presentation of enforcement cases and the ease (or otherwise) with which the public could access the content.

Ease of public access ensures proper scrutiny in the conduct of enforcement and contributes to an understanding by local communities of how their historic environment is being properly managed in a fair and proportionate way. On a wider professional level, the content of well-structured registers permits the generic assessment of the prevalence of particular types of unauthorised work to be evaluated, and fosters a better appreciation of what may constitute good practice regarding terminology and procedures that are essential for the effective implementation of, and compliance with listed building enforcement notices and other action.

In 1997 the government established a Better Regulation Task Force [2] to ensure that regulations were necessary, fair, effective, affordable and enjoyed a broad degree of public confidence and were required meet the following five principles:

• Proportionality
• Accountability
• Consistency
• Transparency, and
• Targeting

While all these principles should apply to heritage enforcement, it is not altogether evident from the findings set out below that in the intervening nearly two decades, these principles have fully informed contraventions of good historic building and area management.

Heritage focused enforcement action has generally assumed a low priority in the workloads of local authority conservation and enforcement specialists despite sometimes being bundled together in job specifications with development management advice and planning appeals. [3]

Heritage-related enforcement often hinges on specialist knowledge and informed opinion on the heritage impact of the unauthorised works undertaken, but the definition of whether the lead responsibility for statutory action between heritage and enforcement officers is not always clearly defined.

Enforcement action by local planning authorities is also discretionary and undertaken when it is expedient to do so. This aspect of heritage management does not always receive sufficient priority despite periodic government initiatives to generally encourage better enforcement.

Heritage enforcement, like general planning enforcement, usually works best with a proportionate and/or graduated response to unauthorised works notwithstanding that these are criminal offences; not least because some works may stem from a genuine misunderstanding and a willingness (where appropriate) to put matters right.

Some remediation of unauthorised work can be satisfactorily concluded by negotiation and/or persuasion (in the face of the threat of more formal action); but where this is not possible or not appropriate the service of an enforcement notice will be necessary, and in more serious cases (especially where destruction has rendered remediation inappropriate or impracticable) the instituting of formal court proceedings.

Enforcement matters covered by paragraph 207 of the National Planning Policy Framework [NPPF] state that local planning authorities should consider publishing a local enforcement plan to manage enforcement proactively setting set out how they will undertake the monitoring and implementation of consents, investigate alleged cases of unauthorised works and take action where it is appropriate to do so. [4] An enforcement register as a statutory requirement should therefore be a part of these arrangements and publication should imply ease of public access as one of the aspects of ensuring public support.

Where listed building enforcement notices have been served it should be possible in the interest of public scrutiny to access such cases on an enforcement register to determine what progress has been made to resolve them.

Sampling exercise

In May 2016 the Institute undertook a random sample of sixty English local planning authority web pages dealing with their planning enforcement using the search term 'planning enforcement register' of which it was assumed heritage enforcement would be integral. This sample represents about 18 percent of councils and a broad spectrum of types: that is urban and rural districts, metropolitan and unitary authorities.

The sampling was predicated on the assumption that in requiring a local authority to compile and maintain a register there should be a reasonable expectation that information on past and present action on heritage cases should be easily accessible (either from the home page or via a general search box) to local constituents in order to meet the objectives of accountability, consistency and transparency.

In some of cases, the location of the relevant information relating to the council's register was easily found via the planning home page or an obviously marked tab or dialogue box linked to a subsidiary page, but this was not always the case and the presentation of the information was in some instances difficult to locate.

In broad terms the sample of authorities can best be categorized as those with web-enabled and accessible registers and those without.

For 7.5 percent of authorities it was stated that the Enforcement Register could not be made available to the public until further notice, but no reason for this was given in any of the instances cited.

The greatest number of authorities sampled with non-web accessible (presumably) paper registers (35 percent) stated that the register could only be inspected by appointment. This seems to be a clear impediment to accessibility.

Of the registers that can be viewed online, 15 percent of authorities facilitated this only through a common search dialogue box used to access planning applications. This requires an external user to input for example, the correct address or application number or similar site-specific information, which would seemingly need to be precisely known in advance. This would appear to be a potentially serious impediment to incidental public access.

A large number of authorities (32.5 percent) interpret a register as placing all their individual enforcement notice entries online but listing them only alphabetically in address order and/or organized by electoral ward. Sometimes but not always this is also categorised by year. Unless the specific address is already known, an external user has no way of ascertaining the type of notice to which the 'register' entry refers nor any other information about, for example, the date the register entry was made, the type of notice involved and the date (if any) that the case had been resolved, other than by accessing each individual entry in turn. An additional contemporaneously maintained index or spread sheet of differing types of enforcement action and the dates of registration might useful overcome this significant drawback to efficient public access.

Registers organized alphabetically by address rather than chronologically also make it difficult to track the performance of authorities in terms of levels consistency, degrees of success, increased or decreased levels and types of activity over time or the speed with which cases are resolved.

Only 10 percent of authorities provided an online accessible register that clearly differentiated heritage enforcement cases (Listed Building Enforcement Notices, Urgent Works Notices and prosecutions) from general planning enforcement cases (Enforcement Notices, Section 215 Untidy Sites Notices, Breach of Condition Notices, Temporary Stop Notices and so forth). This approach also helps differentiate prosecution action from other forms of non-compliance enabling the objective of proportionality to be more successfully scrutinized.

In a very small number of instances (4 percent) a local authority provided a direct link to an individual notice served to enable it to be viewed online. This arrangement is considered the best approach to public scrutiny and the most informative to fellow heritage professionals facing similar aspects of non-compliance. [5]

Some authorities with large numbers of heritage assets (and potentially concomitantly larger instances of breached of control) produce a quarterly enforcement report summarizing the progress being made. [6]

Conclusion

It was not the purpose of this note to deal with local authority enforcement plans and protocols although such mechanisms are recommended in the National Planning Policy Framework (NPPF) and it is axiomatic that good enforcement should flow from sound policy that delivers clear, fair, proportionate and consistent treatment of unauthorised work and conducted in a transparent manner to ensure public scrutiny and attract community support. It is also not the purpose of this note to recommend a departure from current practices, but to highlight that a number of significant shortcomings to current procedures and presentation are evident that could be beneficially addressed.

To help advance good practice in heritage enforcement and provide an efficient and transparent picture of local authority activity; and fulfil the intentions rather than just the letter of Section 188 of the 1990 Planning Act; local planning authorities should endeavour to move towards:

• a publicly accessible and formally approved enforcement plan or protocol;
• publication of the enforcement register online to permit open-access in the interests of accessibility and transparency;
• making the register easy to locate on the authority's planning related web-pages or via a one-stage dialogue box with simple search terms;
• structuring the register chronologically rather than/or as well as alphabetically so that progress in resolving cases can be easily discerned;
• clearly differentiating types of enforcement action – separately identifying heritage enforcement where this occurs;
• providing links so that the content of individual enforcement notices can be opened directly and downloaded where necessary;
• where appropriate, providing a periodic structured summary of enforcement activity where casework volumes (in large authorities) are high.

Postscript

Authorities that fail to maintain a clear and accessible register and fail to allow straightforward public scrutiny are unlikely to adequately meet public expectations regarding effective and efficient heritage enforcement. This risks not only reputational damage to the authority but opens up the possibility of Ombudsman complaint and or even judicial review. Examples of failures to initiate enforcement action in heritage cases [7] or taking an unreasonably long time to resolve cases amounting to maladministration [8] can be found on the IHBC web pages.

Bob Kindred MBE BA IHBC MRTPI

--Institute of Historic Building Conservation 13:20, 12 Jul 2016 (BST)

Endnotes

[1] In accordance with Article 26 of The Town and Country Planning (General Development Procedure) Order 1995 (SI 1995/419) [the 'GDPO'].

[2] See http://webarchive.nationalarchives.gov.uk/20100407162704/http:/archive.cabinetoffice.gov.uk/brc/upload/assets/www.brc.gov.uk/principlesleaflet.pdf

[3] IHBC data published periodically under the Local Authority Conservation Provision Studies [LACS] at intervals since 2003, and the monitoring of local authority job and person specifications (unpublished) from 1998 to date but partly covered by IHBC Annual Job Market audits since 2015 see http://ihbconline.co.uk/toolbox/

[4] The provisions of the European Convention on Human Rights e.g. Article 1 of the First Protocol, Article 8 and Article 14 are relevant when considering enforcement action. There is a clear public interest in enforcing heritage legislation and regulation in a proportionate way. In deciding whether enforcement action is taken, local planning authorities should, where relevant, have regard to the potential impact on the health, housing needs and welfare of those affected by the proposed action, and those who are affected by a breach of heritage control.

[5] See for example Cheltenham Borough Council at: www.cheltenham.gov.uk/info/200074/planning/834/planning_enforcement/5

[6] See for example Cornwall Council at: https://www.cornwall.gov.uk/environment-and-planning/planning/enforcement/

[7] Ibid.

[8] For the general lessons to be drawn see 'Investigation into a complaint against London Borough of Hackney' (Ombudsman Report Reference No: 14 006 093) 10 May 2016 at: http://www.lgo.org.uk/decisions

Related articles on Designing Buildings Wiki

• Data sought for IHBC listed buildings prosecutions database.
• Heritage Asset.
• Heritage definition.
• Heritage partnership agreements HPA.
• Historic England.
• IHBC articles.
• The Institute of Historic Building Conservation.
• What makes a heritage-at-risk officer.