Rhodes

Freedom of Information request

Internal and external correspondence between Council Officers or members relating to the Article 4 Direction in Willow Lane / Pest Lane Watford

Texts of correspondence

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1 / E-mail
From: David Noble
Sent: 25 April 201411:54
To: Carol Chen
Cc: Neil Farnsworth; Lisa Searle; Stephanie Waldron; Nazma Amalou; Martin Jones; Paul Baxter
Subject: FW: Mr Taylor is back....
Carol
Further to our discussion yesterday, I attachinstructions to you to make an Article 4 Direction on land in Pest House Lane/Willow Lane, Watford, together with a copy of the supporting case report.
Also attached is a draft Direction and a plan to accompany it.
David Noble
Development Management Section Head
Regeneration and Development
Ext8283
From:Jane Custance
Sent: 23 April 2014 13:38
To:David Noble; Neil Farnsworth; Lisa Searle; Stephanie Waldron; Carol Chen; Nazma Amalou; Martin Jones
Subject: RE: Mr Taylor is back....
Thank-you David. I am happy with your suggested way forward.
Jane Custance
Head of Regeneration and Development
Watford Borough Council
Town Hall, Watford, WD17 3EX
Telephone: 01923 278044 Fax: 01923 278562
Email:
From:David Noble
Sent: 23 April 2014 12:34
To: Neil Farnsworth; Lisa Searle; Stephanie Waldron; Carol Chen; Jane Custance; Nazma Amalou; Martin Jones
Subject: RE: Mr Taylor is back....
It seems to me that Mr Taylor's fences raise two issues:
(i) are they a means of enclosure?
(ii) are any of the fences in contravention of the enforcement notice?
Are the fences a means of enclosure?
It is clear that in order to satisfy the requirements of Class A of Part 2, Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 as amended (GPDO), the fences must have some function of enclosure (see Prengate Properties v Secretary of State for the Environment [1973] JPL 313, where Lord Widgery CJ commented that the GPDO permission "would not extend to ... a free standing wall in the middle of [a] garden in circumstances in which the wall neither encloses nor plays any part in the enclosure of anything"). Moreover, in WycombeDC v Secretary of State for the Environment [1994] EGCS 61, the court held that a "means of enclosure" must provide some way of closing in an area, so that it became 'enclosed'. This necessarily meant that the means of enclosure must actually surround an area. The court held that the enclosure need not be a complete surrounding of an area, and it would be a matter of fact and degree whether any gaps took it outside the essential character of an enclosure.
Looking at the fences illustrated in the photographs, I think it is possible to argue that none of them actually encloses an area of land. That being so, it is open to the Council to take the view that the fences do not benefit from the permitted development rights in Class A of Part 2, Schedule 2 to the GPDO. The fences (of whatever sort) clearly fall within the definition of "development" in s.55 of the Town and Country Planning Act 1990 (TCPA 1990), so it follows from this that they constitute unauthorised development, against which enforcement action could be taken. On the other hand, the addition by Mr Taylor of a few additional lengths of fencing could ensure that an area or areas of land were fully enclosed, in which case the test in Wycombe would be satisfied and the fences would be permitted development. The only way to prevent such an occurrence from happening would be for the Council to make an Article 4 Direction removing Class A, Part 2 permitted development rights.
Are any of the fences in contravention of the enforcement notice?
Clearly, the fencing at the bottom of Pest House Lane cannot be in contravention of the enforcement notice as it falls outside the area covered by the notice.
As to the other fences, it is possible (although difficult to be sure from the photographs) that they fall within or on the boundaries of the land referred to in the enforcement notice. As s.181 of the TCPA 1990 provides, compliance with an enforcement notice does not discharge the notice. Subsection (3) provides that "if any development is carried out on land by way of reinstating ... works which have been removed ... in compliance with an enforcement notice, the notice shall, notwithstanding that its terms are not apt for the purpose, be deemed to apply in relation to the ... works as reinstated ... as it applied in relation to the ... works before they were removed". The enforcement notice explicitly required fencing, gates and posts to be removed and, in order to secure compliance with the notice, they have been removed (albeit as a result of direct action by the Council rather than by Mr Taylor). Therefore, if any development by way of reinstatement of those fences, gates and posts is carried out then the enforcement notice will continue to bite. Further direct action could then be taken, but only if the Council gives at least 28 days notice (s.181(4)). Additionally, it is open to the Council to bring a prosecution in respect ofthe offence referred to in s.181(5). The question to be asked, however, is whether or not the fences that are illustrated in the photographs are actually a "reinstatement" of those that were removed. None of the fences illustrated in the photographs resemble any of the fences that were removed by the Council, in terms of their appearance or materials or, in some cases, height. Mr Taylor's solicitor might seek to argue, therefore, that the fences now on the site are not reinstatements of the earlier removed fences and they are not, therefore, covered by the enforcement notice. On the other hand, construing s.181 more purposively, it could be argued that the enforcement notice required the removal of fencing, generally, from the locations specified in the notice and that any subsequent provision of fencing in those locations would constitute "reinstatement" and would thus be covered by s.181. I am not aware of any case in which the application of this section has been considered by the courts, so there is no judicial guidance as to how s.181 is to be interpreted in the Willow Lane situation.
What to do next
In my view, the only way to prevent the erection of fences which do actually enclose an area of land would be to make an Article 4 Direction, removing the right to carry out permitted development covered by Class A, Part 2 of Schedule 2 to the GPDO. Such a Direction would not prevent the developer of the Health Campus from erecting hoardings or fences around the construction site, as these are permitted development under Class A of Part 4 (although it should be noted that such structures cannot be erected before planning permission is granted for the Health Campus development).
Regarding the fencing at the bottom of Pest House Lane, as this is unauthorised development, an enforcement notice can be issued requiring its removal.
In respect of the other fences, if it is concluded that they do constitute reinstatement of works covered by the original enforcement notice, then further direct action can be taken (after 28 days' notice has been given) together with prosecution for the offence referred to in s.181(5). Otherwise it will be necessary to treat these fences in the same way as the one at the bottom of Pest House Lane, i.e. through the issue of a further enforcement notice. In this case, the whole of the land in Pest House Lane up to Willow Lane could be included in the one notice.
Despite whatever further debate is necessary regarding the fences on the site of the original enforcement notice, I consider that the making of an Article 4 Direction ought to be the first priority, in order to stop further means of enclosure being constructed against which the Council would not be able to take any action. See draft Direction and plan attached.
David Noble
Development Management Section Head
Regeneration and Development
Ext8283
From: Neil Farnsworth
Sent: 16 April 2014 16:44
To:Lisa Searle; Stephanie Waldron; David Noble; Carol Chen; Jane Custance; Nazma Amalou; Martin Jones
Subject: Mr Taylor is back....
Site Visit today whilst putting up the CPO Notices (around 1245)
1m high fence extending down RHS of Pest House Lane (photo 1)
1m high gate at bottom of Willow Lane (photo 4)
2m high HERAS fencing at bottom of old site (zoom in on photo 3)
2m high new HERAS fencing at bottom of Pest House Lane where it meets Cardiff Rd (photos 2 and 5)
2 / Memorandum
From:David NobleMy Ref: DPN/Art 4
Development Management Section Head
To:Carol ChenYour Ref:
Head of Democracy and Governance
Date: 25 April 2014
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Article 4 Direction
Pest House Lane/Willow Lane, Watford
I have today, under delegated powers, authorised the making of an Article 4 Direction in respect of land at Pest House Lane/Willow Lane, Watford. I attach a copy of a report prepared by the case officer, Paul Baxter, setting out the case for making an Article 4 Direction. Also attached is a plan identifying the boundaries of the land in question. The copy of the report also signifies my agreement to the recommendation. I have taken this decision under the powers delegated to me by virtue of paragraph 6(m) of Part 3 (2) - Responsibility for Council Functions of the Council’s Constitution.
Please treat this memorandum, therefore, as my instructions to make an Article 4 Direction in accordance with the case officer’s report. A draft form of Direction is enclosed, from which you will note that, given the urgency of the situation, the Direction should come into force immediately.
As I understand there is no known owner of the land it will be necessary to publicise the making of the Direction by site notice (which Regeneration & Development can arrange). However, it would be appropriate to notify Mr Taylor, Rhodes House, 12A Rose Gardens, Watford WD18 0JB.
You will have noted above the urgency of this situation. I would be grateful, therefore, if you could expedite the making of this Direction.
David Noble
Development Management Section Head
3 / E-mail
From: David Noble
Sent: 25 April 201416:18
To: Paul Baxter
Cc: Lisa Searle; Stephanie Waldron
Subject: Article 4 Direction, Pest House Lane/Willow Lane
Paul
Attached is a copy of the Article 4 Direction that was made today regarding Pest House Lane/Willow Lane.
Regarding publicising the making of the Direction, the following steps are required:
(a) post at least two notices on site, most obviously at the top and bottom ends of the land in question. A form of site notice is attached.
(b) notify the National Planning Casework Unit (draft letter attached, which needs dating). The letter should be accompanied by a copy of the Direction and a copy of the report justifying the making of the Order.
(c) notify Mr S Taylor - I suggest a similarly worded letter as that for the NPCU, but without the case officer's report.
(d) place a notice in the Watford Observer (for Friday 2 May 2014) - draft form of notice attached.
It would also be appropriate to notify Martin Jones and Neil Farnsworth that the Direction has been made.
The Direction will come into force, in accordance with Article 6(6), on the date on which the site notices are published. It will be necessary, therefore, to keep a documentary (and preferably also photographic) record of when and where the notices are posted.
Regards
David Noble
Development Management Section Head
Regeneration and Development
Ext8283
4 / E-mail
From: David Noble
Sent: 25 April 201416:25
To: Paul Baxter
Subject: Article 4 Direction, Pest House Lane/Willow Lane
Paul
I should have also said in my previous e-mail that we will need to add a copy of the new Article 4 Direction to to the web site at
This needs to happen a.s.a.p. as there is a reference to the Direction being available on the web site on both the site notice and the press advert.
Hopefully, Juliett (or Barbara) will be able to assist.
David Noble
Development Management Section Head
Regeneration and Development
Ext8283
5 / E-mail
From:Stephanie Waldron
Sent: 29 April 2014 17:24
To:Councillor Nigel Bell
Subject: Pest House Lane/Willow Lane - Article 4
Dear Cllr. Bell
An Enforcement Notice was served onunregistered landat Pest House Lane/Willow Lane, requiring the unauthorised use of this land to cease. The Notice also required the removal of fences and an area of hard standing which were associated with the unauthorised use. The period for compliance with the Notice expired without Mr Stuart Taylor, who was the occupier of the land, having taken the steps required by the Notice. As a result, direct action was takenby the Council on 3rd April 2014 toenforce the requirements of the Notice by removing thehard standing and fencing.Following thisaction, it would appear that Mr Taylor has erected some more fencing.We will be investigatingthis in order to establish whether or not this is abreachof the Enforcement Notice(which remains effective on the land) or whether it isdevelopment that could be regardedas'permitted development'.
TheCouncil has also madean Article 4Direction, the effect of which is to removepermitted development rightsto erect fences, walls or other means of enclosure on land at Pest House Lane and Willow Lane. Any fences that constituted permitted development and which had been erected on the land before theArticle 4Direction came into effect will not beaffected by the Direction. Any other fences or means of enclosure will now require planning permission, whether previously regarded as permitted development or not.
Regards
Stephanie Waldron
EnforcementOfficer (Planning)
Regeneration and Development
Watford Borough Council
Town Hall,Watford,Hertfordshire WD17 3EX
Phone: (01923) 278289
Fax: (01923) 278244
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