Civil Remedies in Law Enforcement: The Planning Experience

DOIhttps://doi.org/10.1108/eb025743
Pages384-388
Published date01 February 1996
Date01 February 1996
AuthorRichard Harwood
Subject MatterAccounting & finance
Journal of Financial Crime Vol. 3 No. 4 Environment
ENVIRONMENT
Civil Remedies in Law Enforcement: The Planning
Experience
Richard Harwood
Enforcement of regulatory controls has tradition-
ally been left to the criminal law. In the last 15
years there has been an increasing interest in using
civil remedies for this purpose. Most of the atten-
tion has been on financial services,1 but there have
been recent developments in the UK planning
system, which provide interesting parallels.
BACKGROUND
The key concept in planning enforcement is that
of breach of planning control. This is the carrying
out of development without the required planning
permission or failing to comply with a limitation
or condition in a planning permission (s. 171A(1)
Town and Country Planning Act 1990 ('the Act')).
The requirement to have planning permission is in
respect of operational development (eg putting up
a building) or a material change of use (eg from a
shop to an office). Where a planning permission is
carried out, the limitations or conditions in it must
also be complied with (eg the houses shall not be
occupied until the access to the highway has been
constructed in accordance with the approved
plans).
A breach of planning control does not itself
create criminal liability. It allows the local author-
ity to serve an enforcement notice2 or a breach of
conditions notice3 requiring the breach to be
ended and specified steps taken to remedy it. It is
only when the period for complying with the
notice has expired that criminal liability is in-
curred. In the case of enforcement notices that
period can be substantial. It is at least 28 days after
an enforcement notice is served that it can take
effect.4 There is then a period for compliance,
usually weeks or months. The enforcement notice
may be appealed to the Secretary of State, who
may hold an inquiry. The Secretary of State's deci-
sion can be challenged in the High Court. The
process can take years.
The local authority can expedite matters by serv-
ing a stop notice5 with the enforcement notice.
This bans the activity immediately, with criminal
liability for any failure to comply.
Once criminal liability attaches, a prosecution
can be brought by summons. But at its quickest, it
will take three months from instituting proceed-
ings to trial. It sometimes takes over a year for a
case to come to trial, particularly if the defendant
elects for jury trial. Since the purpose of enforce-
ment proceedings in planning is to stop and
remedy the breach, this can be a substantial period.
The court's powers are only to fine the defendants
and this may be insufficient to prompt compliance
INJUNCTIONS
The Attorney General has the power to take pro-
ceedings in the public interest. This includes
enforcement of the criminal law, but the power is
exceptional and must be exercised with great cau-
tion.6 Local authorities have a general power to
bring proceedings, including civil proceedings, if
they 'deem it expedient for the promotion or pro-
tection of the interests of the inhabitants of their
area' under s. 222 Local Government Act 1972.
This local authority power includes seeking
injunctions to restrain breaches of the criminal
law. It was frequently used to uphold the old
Sunday trading laws.7
But this power was limited to something more
than a mere breach of the criminal law. It was said
in one case that the breach had to be 'deliberate
and flagrant'.8 In City of
London Corporation
v Bouis
Construction
Ltd9
Bingham LJ laid down the follow-
ing principles:
(i) that the jurisdiction is to be invoked and exer-
cised exceptionally and with great caution;
(ii) that there must certainly be something more
than mere infringement of the criminal law
Page 384

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