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Planning enforcements demand attention, not deliberate defiance

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legal matters

One of the many functions that local authorities carry out is planning control.When acting for the planning department of a local authority recently, the senior planning officer told me that when he embarked upon a career in planning it never occurred to him that anyone would possible defy the planners or even, heaven forbid, refuse to comply with an enforcement notice. Action by the authority in default of compliance was something he never imagined necessary.

Needless to say, it was just such a refusal that had brought us to court and kept us there for the next four days. The action had been brought by Mr Goodacre, who had been able to salvage little from his bankruptcy, save for a small strip of landlocked woodland in Sussex. Goodacre, undaunted by his change of circumstances, continued to use his patch of woodland as if it were still attached to the farmhouse that had since been repossessed by the bank and sold.

He kept a caravan there, erected several sheds and storage, arranged for a telephone and electrical supply and stored much of the paraphernalia of his previous life including building materials, storage tanks, old bicycles, car parts and an old, disused tractor.

Goodacre's patch was set in an area of outstanding natural beauty, adjacent to a footpath. Complaints were made to the local planning authority, which was obliged, ultimately, to issue a total of three enforcement notices requiring the removal of the caravan, the building materials and sheds.

Goodacre appealed each notice to the planning inspector and then to the High Court without success. Once he had exhausted all avenues of appeal, he tried a different tack and applied for planning permission to build a traditional building on the site, but continued to ignore the enforcement notices. The local authority engaged a clearance contractor and finally cleared the site over a busy three days in the summer of 2001.

Goodacre subsequently brought proceedings against the local authority for trespass, negligence and conversion of goods (the civil equivalent of theft). Among his complaints was the fact, as he saw it, that many of his valuable items had been removed and disposed of as scrap.

These included parts for a pre-war Singer Le Mans sports car, dressed sandstone and bricks, and a Massey Ferguson tractor and spares. It seems that there are two types of people in the world: those for whom the phrase 'Massey Ferguson' brings a sentimental tear to the eye, and those for whom? well, it doesn't.

The local authority argued that it had the power to sell materials removed from the site and not claimed within three days, but that as a matter of practice it would only exercise it in respect of items of obvious value.

The local authority's case was that little of what was stored on the site, including the tractor, was of value. Looking at the bigger picture, however, the authority was concerned about the lengths to which it was expected to go to take care when taking enforcement action; not to damage the law-breaker's goods, to have all items valued in case they turned out to be priceless collectors' items or to store, indefinitely, items of little or no value.

The judgment in Goodacre v Wealden District Council (approved 16.2.04) offers some useful guidance on these points. The judge acknowledged that it was inevitable that some damage would be caused during a site clearance operation and that the nature of the task was such that it would be wrong to impose a duty upon the local authority to take care, unless it was obvious that care should be taken. The power of sale applied only to items of value - not value in an absolute sense, but within the circumstances of the case.

Thus the authority did owe a duty to take care of the items it decided to preserve for sale. In this case, however, he found that the items it disposed of were fairly described as scrap, particularly as Goodacre had made no attempt to arrange for their removal, even the tractor. Goodacre is applying for permission to appeal the judgment.

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