The client instructed Samuel Okoronkwo Jr. in relation to enforcement proceedings arising from the development and use of commercial land which had previously been used for industrial purposes.
The client had purchased the land in or around 2019, which included an existing commercial building and residential cottage. The client’s intention was to relocate his business to the site and subsequently obtain planning permission for the residential use of the existing cottage. Prior to commencing development, the client submitted a pre-planning application seeking approval for a change of use of the land, however this was refused.
Following the purchase, the client commenced development works, including the construction of an industrial warehouse and installation of a septic tank. The works were undertaken by contractors instructed by the client.
The local authority subsequently raised concerns regarding the installation of the septic tank and alleged that the works were unauthorised and contravened restrictions relating to protected trees on the site. The client was given a limited period to address the issue and subsequently submitted an application seeking regularisation of the installation.
A further planning application was submitted seeking permission for the change of use of the land and erection of a building. The application was refused, and the client subsequently appealed the decision. The appeal was dismissed, following which the local authority issued an Enforcement Notice requiring the client to comply with its requirements.
Due to alleged non-compliance with the Enforcement Notice, criminal proceedings were commenced against the client.
Counsel was instructed to represent the client in relation to the criminal proceedings and planning enforcement issues. Counsel engaged with the client, the prosecution and the local authority and successfully secured adjournments of the proceedings. Following discussions, Counsel persuaded the prosecution that it was no longer in the public interest to proceed with the prosecution. The prosecution subsequently offered no evidence, the trial was vacated and the Enforcement Notice was withdrawn.
Following negotiations, it was agreed that the prosecution would be withdrawn subject to the client undertaking site clearance works, including ceasing storage use of the land, removing specified items and allowing areas of the land to naturally regenerate.
The client subsequently carried out clearance works and provided photographs demonstrating progress. Further applications remained to be considered, including applications relating to retention of fencing and gates, retention of a shed and permission for the construction of a new cottage.
The principal issue was whether the client had options to regularise the use and development of the land following the withdrawal of the Enforcement Notice and conclusion of the criminal proceedings.
Counsel considered the planning history of the site, including the refusal of previous applications, the subsequent appeal and the enforcement action taken by the local authority. Counsel considered the importance of ensuring that any future applications addressed the concerns previously raised by the planning authority.
A further issue concerned the client’s compliance with the agreed site clearance requirements following withdrawal of the prosecution. Counsel considered whether the works undertaken by the client were sufficient to satisfy the requirements agreed with the local authority and whether any further steps were required before inspection.
Counsel also considered the client’s proposed applications for retention of existing structures and the construction of a new residential property. Counsel advised that these applications would require appropriate supporting evidence and professional input, including preparation of architectural plans and supporting documentation.
A further issue concerned the relationship with the local authority and the need to maintain constructive communication to avoid further enforcement action. Counsel considered the importance of arranging a site inspection with the planning officers to demonstrate compliance and progress.
Counsel advised that the immediate priority was to confirm the extent to which the agreed site clearance works had been completed and ensure that the site was presented in a manner satisfactory to the local authority.
Counsel advised that photographs and supporting evidence should be reviewed to establish whether the client had complied with the requirements relating to removal of storage items, structures, hardstanding, fencing and other materials associated with the previous use of the land.
Counsel advised that a site inspection should be arranged with the local authority following confirmation of the works completed by the client. Counsel advised that maintaining dialogue with the planning officers would assist in demonstrating cooperation and improving the prospects of future applications being considered favourably.
Counsel advised that further planning applications should be progressed in relation to:
retention of the existing fencing and gate;
retention of the existing shed; and
permission for the construction of a new cottage.
Counsel advised that an architect should be instructed to prepare the necessary plans and supporting documentation. A brief was prepared for review and Counsel advised that quotations should be obtained from an appropriate architectural firm before proceeding.
Counsel advised that the client’s previous success in avoiding prosecution was dependent upon continued compliance with the agreed undertakings. Counsel advised that failure to complete the required clearance works could result in further action being taken by the local authority.
Counsel further advised that the next steps were to review the proposed correspondence to the client, finalise instructions for the architect, confirm completion of the clearance works and coordinate the proposed site inspection with the local authority.
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