The government has told planning authorities that there will be no radical shake-up of the planning enforcement regime next year when new guidance will be published. The current enforcement regime has been the subject of a major review, but the review has concluded that there is still strong support for the current statutory framework.

Recommendations from the review published this week include the principle that enforcement should remain at the discretion of the planning authority. Other areas of no change include no widening of the scope of planning fees to include charge for enforcement, no change to the principle of allowing retrospective planning permission, no proposal to make development without permission (or breach of consent) an offence, and no change to the existing arrangement that there is no right of appeal against a breach of condition notice.

In fact the only significant change to have emerged from the review to date is the introduction of the Temporary Stop Notice (TSN), which figures show was used over 300 times last year. New regulations and guidance are now promised on TSNs ahead of new TSN provisions that will come into effect as a result of the 2004 Planning Act.

The Appeal Court, however, has just taken a tough line on enforcement in concluding one resident’s fight against loss of light, issuing what is seen as a potential landmark judgement to demolish part of the offending development.

The claimant had protested against the replacement of two- and three-storey buildings by a five storey mixed-use scheme some five months before the development reached its full height. The High Court subsequently awarded £5,000 to the claimant in place of an injunction to prevent infringement.

Overturning the ruling, the Appeal Court said that the High Court had been wrong to place the onus on the claimant to demonstrate why damages should not be awarded as an alternative to an injunction. Other notable parts of the ruling were that it was the amount of light left after development that was the primary consideration, rather than the amount of light lost, and the view that the developer had taken a ‘calculated risk’ in pressing ahead with the scheme in full knowledge of the complaint.

The most notable element of the judgement, however, was that part of the development must be demolished despite the serious effect this will have on the developer’s plans.

A commentary on the judgement of Regan v Paul Properties DPF No 1 Ltd is at http://www.lawreports.co.uk/WLRD/2006/CACIV/oct1.1.htm

The DCLG’s Review of planning enforcement: Summary of Recommendations is at http://www.communities.gov.uk/index.asp?id=1504355