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NOT GOING TO PLAN

LEGAL

Not complying with planning controls is sometimes regarded in a different light from other sorts of law breaking, writes Sue Lindsey. But those who breach planning requirements are law breakers, and the laws they break are there for the benefit of all of us. The courts will clamp down on offenders when necessary, as illustrated in Tunbridge Wells Borough Council v Redford (13.12.04).

The Redfords have owned Pork Pie Farm since 1991, at which time one small barn stood on the 1ha site. By the end of last year it sported a converted barn decorated with wagon wheels, that was in use as a house, a cowshed and a mobile home. It seems this may not have been the rural idyll that it sounds, given that the judge described the overall effect when seen in an aerial photograph as 'what looks like a semi-industrial tip thrust into the middle of the Kent countryside'. However, the structure was home to the five adult Redfords.

None of these structures had appropriate planning consent. Over the years the local authority had served eight enforcement notices, perhaps spurred on by neighbours of the 'Disgusted of Tunbridge Wells' variety.

The owners of Pork Pie Farm made various applications for retrospective planning consent but none was successful. Apart from making the applications, the Redfords simply ignored the enforcement notices. Eventually the planning authority applied for an injunction to make the Redfords comply with the notices. The court had to decide whether or not to grant one.

In concluding that an injunction was appropriate, the judge referred to House of Lords' guidance in South Bucks District Council v Porter (2003).

There was no single, simple test that the court could apply, as the facts that arise in each case are different. The question the court had to grapple with was whether in all the circumstances it was just to grant an injunction. As it appeared that the breaches would continue unless an injunction was granted there was a strong indication that the court should take that step.

It was agreed that the Redfords' rights under Article 8 of the European Convention on Human Rights (the right to respect for their home) were relevant. However, those rights are not absolute and do not exist in a vacuum. Their context is the legal and democratic structures that protect the rights of all of us - and ensure that all of our rights are entitled to be recognised. Interference with someone's right to respect for their home can be lawful, and measures such as granting the injunction that Tunbridge Wells sought in this particular case can be necessary in a democratic society.

The judge concluded that the court simply could not sanction a state of affairs where enforcement notices were being ignored.

Although unfortunate for the Redfords, they had brought their difficulties upon themselves by refusing to comply with the planners' requirements. They had many years within which to sort out their affairs but had failed to do so. So the planning system does have teeth, which are sometimes used to bite the backsides of those who flout it.

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