It would be remiss to have an edition of Future Perfect? without mentioning Dale Farm given that planning law is at the heart of this dispute - and it is not often that this creates such a media frenzy!
The point I would like to pick up on comes out of the travellers' successful application for an injunction to postpone the evictions. The court held that the injunction was necessary as there were triable issues relating to almost every plot on whether the steps the council wishes to take to remove unlawful structures and buildings are properly within the scope of the enforcement notices.
The court had to consider whether a building unlawfully constructed on a hard standing, which was the subject of an enforcement notice, can be removed if that building was in existence at the time of service of an enforcement notice which does not refer to its demolition or removal. The court considered the incidental powers available to councils under section 111 Local Government Act 1972 to carry out "anything" that will facilitate the discharge of their functions including the removal of such buildings. However, the court held that these enabling powers can only lawfully be used if they are genuinely to enable the discharge of local authorities functions under a primary power. Inherent in this power is a requirement for the council to restore the status quo after the primary statutory power has been exercised.
In the court's view, the demolition of the building itself should have been the subject of the enforcement notice if it were in existence prior to the enforcement notice being issued. The burden of proving when the building was erected falls on the travellers. If the unlawful building or structure in question was erected after the issue of the enforcement notice, there would be no issue with removing the building as it would be necessary for the carrying out of the steps specified in that notice. As the building was not in existence when the notice was issued, there is no way the council could have included it in that notice. The court saw no reason for the council to need to issue a fresh notice in these circumstances if the building was erected in breach of planning control, and with knowledge of the existence of an enforcement notice on that plot.
The battle is ongoing for the travellers' and the council, but the key point for councils to take from this hearing is that they must not rely on incidental powers when exercising their enforcement powers. Councils should ensure their enforcement notices state exactly what steps are to be taken and what structures are to be removed, bearing in mind the consequences of under-enforcing and the criminal penalties for failure to comply with such notices.
Case mentioned: Egan v Basildon Borough Council (2011)