Planning Enforcement: Beware of the PCNPublished on: 08 February 2021
Local planning authorities have various powers to compel a landowner to provide information about land in their areas. This includes the power to serve Planning Contravention Notices (PCNs), the purpose of which is to obtain information about alleged unauthorised development. PCNs, although discretionary, are an important step in planning enforcement investigations.
PCNs are not actual enforcement notices, which require the person who receives them to stop or remove unauthorised development. Therefore, there might be a temptation for landowners or other recipients of PCNs, and even local planning authorities, to be somewhat relaxed about responding to them or following them up. However, failing to respond properly to a PCN attracts criminal liability and the case of Russnak-Johnston v Reading Magistrates Court  EWHC (Admin) 112, which was decided on 26 January 2021, demonstrates why stakeholders overlook the importance of PCNs at their peril.
The purpose of a PCN is to find out information about an allegation of breach of planning control, which could be an unauthorised change of use or building or other operations without planning permission or a failure to comply with a condition that is on a planning permission. A PCN can require the landowner or occupier to provide a wide range of information including what is going on the land, when the allegedly unauthorised activity started, who is carrying out the unauthorised activity and what interest they have in the land. As wide as this power is, case law is clear that a PCN is not to be used as a “fishing expedition” in that the authority must have some evidence beforehand of unauthorised development and the information sought in the PCN must be aimed towards that development. The recipient of a notice has 21 days to respond.
What Will Be the Consequence If the Landowner Fails to Respond to the PCN?
Failure to respond to a PCN or to intentionally or recklessly provide false information in response is a criminal offence as is failure to comply with any subsequent enforcement notice. While the PCN-related offence carries a limited fine and is a ‘summary offence’, which means it can only be tried in the magistrates’ court, the offence related to the enforcement notice is more serious. Failure to comply with an enforcement notice carries an unlimited fine (as in there is no limit on the fine that can be imposed on the defendant) and can be tried in either the magistrates’ or Crown Court.
Therefore local planning authorities focus quite naturally on the enforcement notice. If somebody blatantly lies in response to a PCN, it is more common for authorities to use that fact to attack their credibility in an enforcement appeal than to go through the trouble of prosecuting the person. Also because it is a summary offence, the authority has six months, from the commission of the offence, to prosecute. However, it should be noted that failure to comply with a PCN (like an enforcement notice) is what is known as a ‘continuing offence’ which means that there is an ongoing obligation to provide the information requested by the PCN, even after the end of the initial 21-day deadline.
What Happened in the Case of Russnak?
The case of Russnak centred around a site, that had permission for the keeping of horses for recreational use, which the local planning authority suspected was actually being used for residential purposes and as a commercial livery. The authority served two PCNs. The first one related to residential use and the second to commercial livery uses. In the second PCN, the claimant was asked to provide leases, agreements and other documents relating to the commercial use which she did not.
An enforcement notice was served and the documents requested were produced during the appeal. The enforcement notice was withdrawn but the local planning authority decided to prosecute the claimant for failing to provide information and providing false information in response to the PCNs. The claimant applied for a judicial review and quashing of the magistrates’ decision to proceed with the prosecution.
The first point the claimant took related to the definition of ‘information’. In my experience, a PCN usually consists of a list of questions and it is more unusual to see requests for documents as in Russnak. The High Court did not accept the claimant’s argument that asking for documents fell outside the definition of ‘information’ in the legislation and that therefore the authority had exceeded its powers. The court decided that that the word "information" clearly included information in the form of the document.
The next point from the claimant was that the six-month time limit to prosecute the offences had long expired by the time the local planning authority started the prosecution. The court interpreted the legislation to mean that the offence of failing to answer a question on the PCN was a continuing offence. This meant that the six-month time limit started afresh on every day after the initial 21-day period that the information was not provided. However, the offence of providing false information was committed once and for all when the false information was provided and could not a continuing offence.
The case is a good reminder to take PCNs seriously, even though they are not actual enforcement notices. Failing to respond to them could have a number of consequences, which include affecting future compensation rights, which are outside the scope of this note, and affecting the landowner’s credibility in any enforcement appeal. Finally, as the case says, a recipient of a notice cannot relax once the six-month period from the day that they are supposed to submit their response expires. The authority’s six-month time limit starts afresh every day that they fail to respond to the PCN and as the case demonstrates, in the right circumstances, authorities are willing to prosecute for the offence of failing to respond properly to PCNs.