Q & A 4.39/10
A resident has dumped a considerable amount of building materials in his rear garden that can only be viewed from neighbouring properties. Although he claims the materials are to be used on his dwelling, in my opinion they are not re-usable. My authority will only consider serving a Wasteland Notice if it involves an untidy front garden that is clearly visible from the public domain and harms its amenity, as opposed to a rear garden that affects only the amenities of adjoining occupiers. In exceptional cases, can a Wasteland Notice be served in relation to a rear garden?
Section 215 of the Town and Country Planning Act 1990 provides authorities with a discretionary power to require landowners to clean up 'land adversely affecting the amenity of the neighbourhood'. Although for historical reasons a notice served under this section is still sometimes referred to as a ‘wasteland notice’, it is more correctly known as an amenity or Section 215 notice. Amendments introduced by the Housing and Planning Act 1986 lowered the appropriate test from one of ‘serious injury’ to ‘adverse effect’ on amenity. However, amenity is not defined in the act or elsewhere in planning legislation and guidance, and this has created difficulties when deciding whether a notice would be justified. While this problem was highlighted in the DETR-commissioned planning research report Derelict Land and Section 215 powers , this concluded that the existing provisions did not need to be amended.
Best Practice Guidance issued by the ODPM in January 2005 states that authorities should not be afraid of serving Section 215 notices. It contains useful advice on procedures and interpreting the concept of amenity, and includes a case study involving the untidy back garden of a terraced house. In the light of this and that there is no requirement that amenity be defined solely within the context of the street scene, I see no reason in principle why a section 215 notice should not be served where the amenity that is adversely affected is enjoyed solely by adjoining occupiers. However, there may be a difficulty in this case were the recipient of the notice to appeal on the grounds that the materials are to be used on his dwelling and therefore the condition of the land is attributable to and results in the ordinary course of events from the carrying on of operations that do not represent a breach in planning control.
A recent article in a national newspaper reported that a council was using such notices to force owners of buildings to carried out specified maintenance works. Whilst I applaud the council for forcing neglectful owners to repair and maintain their buildings, I doubt whether it is appropriate to use Section 215 powers in this way. It also appears that no one has challenged the council over this issue. My understanding is that Section 215 is intended to require owners of land and not buildings to clean up their land when its condition is so poor that it adversely affects the amenity of the area. Can you confirm whether Section 215 can be used to require works to buildings?
The introduction to the Best Practice Guidance referred to in my reply explains that the most important message that planning authorities should be aware of is that Section 215 action can be taken against land and buildings and that in Section 336 of the Town and Country Planning Act 1990 the definition of ‘land’ includes a building. The guidance explains that the scope of works that can be required in Section 215 notices is wide and includes planting, clearance, tidying, enclosure, demolition, re-building, external repairs and repainting. The guidance also cites a number of case studies relating to the use of Section 215 notices on buildings, including one that is listed. Of course according to circumstances there are other remedial powers available to local authorities, such as those under the Planning (Listed Buildings and Conservation Areas) Act 1990 in respect of listed buildings and, under the Building Act 1984, for defective and dangerous buildings.
Like many authorities, my council suffers from the problem of former grazing land that has been bought up and sub-divided into small "building plots" for sale on the internet. So far our response has been to serve an article 4 direction. However, all the plots have now been sold, marked out with pegs and so forth, and become overgrown and unsightly. Could section 215 notices be used to address this problem and is there any more that the authority could do?
Advice on the potential remedies available was set out in letters sent last year by the Office of the Deputy Prime Minister (ODPM) and Welsh Assembly Government to all planning authorities in England and Wales. This stressed that the first line of defence is vigilance and the monitoring of advertisements for the sale of such plots. Authorities were advised that they could take action on a number of fronts including, as you say, article 4 directions to remove permitted development rights that allow fences or other means of enclosure to be erected and to prevent the stationing of caravans. In addition, authorities were reminded of the powers available under section 102 of the Town and Country Planning Act 1990 to require the discontinuance of any use of land or the removal of any building or works, although in some cases this can result in payment of compensation. Section 215 notices may also be served to require an owner to remedy the unsightly consequences of rural plot creation and their use in this context is acknowledged in the Best Practice Guidance issued in January. According to circumstances, enforcement action could be considered against any unauthorised change of use of the land to leisure use and, in extreme cases, compulsory purchase of the offending land may be appropriate.
A client has Japanese knotweed encroaching into his garden and damaging boundary walls and patio areas. A neighbour has a heavy infestation and the overgrown vegetation harbours rats. I have suggested to the planning authority that they serve a notice under s215 of the Town and Country Planning Act 1990 to remove the knotweed. Their response is the knotweed does not affect the amenity of the area and is only visible from the rear of a few properties. In these circumstances a s215 notice would not be appropriate. Your advice would be appreciated. KT.
The power to serve s215 notices is discretionary. Whilst you might disagree with the authority’s conclusion, it has considered the issue and justified its view. If the knotweed is harbouring rats, you might be able to persuade the council’s environmental health section to take action, though this might not necessarily require the knotweed’s removal, e.g. putting down rat poison might be sufficient. If the Council is unwilling to take action, as damage is occurring to his property, it would seem likely that your client would be able to take action against his neighbour under common law. JH.
If Japanese knotweed constitutes a nuisance at common law, the local authority may have a statutory duty to serve an abatement notice under section 80 of the Environmental Protection Act 1990. Alternatively, the complainant can initiate action himself by making a complaint to the magistrates court seeking an abatement order under section 82. PS.