No 2 – Should I move on or Apply First?
D.I.Y. PLANNING BRIEFINGS
FOR LOW IMPACT DEVELOPERS
Published by Chapter 7 Feb 2001
This is probably the most frequent question asked by people intending to live on land in low impact dwellings or caravans. The answer we give is usually this:
If your project is quite ambitious, if it requires a respectable image, if it relies on a high amount of capital investment, and particularly if you are aiming to attract funding from bodies that might be put off by a “direct action” approach, then you might be better advised to apply for residential permission before moving on; but if your project is relatively small and discreet and is not dependent upon high capital investment, you will almost always be in a stronger position if you move onto the land first; however you are well advised to prepare your case beforehand so that you are ready for the planners if and when they arrive.
Is it illegal for me to live on land without applying for permission?
No. “It is not an offence to carry out development without first obtaining any planning permission required for it” ( PPG18 Para 6). It will normally* only become illegal for you to be living on the land when an enforcement notice against you comes into effect. If you appeal against enforcement, the enforcement order does not come into effect until you have lost the Appeal. The same applies if you take the matter to High Court. An enforcement notice, once it come into effect, will normally give you a period such as three or six months to comply. If you do not comply within this period, the planning authority can (but is not obliged to) bring you before the magistrates for a criminal offence, and you can be fined or injuncted against, or an order made for the removal of your dwelling.
* Technically, living on the land can become illegal immediately if the local planning authority issues a what is known as a stop notice. However they are not allowed to issue a stop notice on dwelling houses, though they can on caravans. Nobody seems to know whether they can be applied to temporary dwellings. South Somerset District Council tried to issue one on the benders at Tinkers Bubble and then withdrew it.
Will the planners be biased against me if I move on before applying?
Unlikely. They are used to people doing things without applying for permission and recognize that it is not illegal. They are perhaps more likely to be biased against you if you approach them first, get a thumbs down, and then move on to the land anyway against their advice. However Committee members may well be biased against you on this account (“I applied for permission before putting up my bungalow; why didn’t you?”)
Will the fact that I have moved onto the land prejudice my chance of gaining planning permission?
No. If anything, planning authorities find it easier and more socially acceptable to refuse residential planning permission to someone who has a home elsewhere, than to refuse planning permission for someone who may be made homeless by that refusal.
Will the fact that I have moved onto my agricultural/forestry holding affect the way in which that holding is assessed?
Yes. Residence on agricultural holdings is assessed by a functional test (do you really need to live there?) and a financial test (is the operation economically viable?) — see briefing XXX. Applicants who are applying for residence on site whilst living elsewhere may find themselves in a “catch 22” situation. If the operation is already viable, they may be told that they clearly do not need to live there; if it is not a going concern because of the difficulty and expense of operating it from elsewhere, they may be refused on the grounds that it is not viable. One way to bypass this catch 22 is to move on to the site before applying.
What are the chances of being kicked off the land by the planners if I move on without permission?
Fairly low. Planners are not keen on evicting people from their homes. They get a bad enough press anyway, without being pictured in the local rag as heartless bureaucratic thugs.
Chapter 7 only knows of three cases where enforcement officers have physically come in and removed people or dwellings. In all three of these cases there appeared to be some kind of feud going on, and in one of them the occupant (Albert Dryden) shot the planning officer dead. We know of one case of a mobile homeowner being jailed for two weeks. We know of two cases where mobile home owners have been fined two to three hundred pounds, (bu t one was subsequently given planning permission on a human rights grounds); and one case of a chap who was fined for living in his workshop. We have heard of cases of gypsies being forced off land as a result of enforcement proceedings.
On the other hand we know of a great many more cases where people have managed to stay on their land, muddling through a series of applications and appeals, and have eventually acquired some kind of permission
Of course there are some people who can’t face the hassle and move off before it gets to the court. This is something you can choose to do at any point prior to going to a magistrates court, without risking a fine or imprisonment.
Planners are not obliged to carry out enforcement: it remains “at their discretion” (PPG18 para 4). They may at any time “withdraw . . . waive or relax any requirement of such a notice”. (Section 173A Town and Country Planning Act 1990 as amended in the Planning and Compensation Act 1991 section 5); and they are advised of the need to negotiate even after an enforcement notice has taken effect (PPG18 para 16).
We know of several cases where an enforcement notice has come into effect, yet no action has been carried out. Two years after the initial application has been refused, another identical application can be made , and the application process starts all over again (though the enforcement notice still stands.) What are the chances of the planners simply ignoring me?
That depends where you are and how discreet you are. There are cases of people remaining undiscovered for 10 years and acquiring a certificate of lawful use (see briefing XXX). Underground houses, dwellings in woods and low car use are all helpful in remaining undiscovered, but the key factor is probably a good relationship with neighbours.
Another factor is the number of low impact sites in the area. Somerset County Council claims that there are 30 unofficial bender sites in the county, and most of these are apparently being ignored by planners. It seems that after a number of extremely long and expensive planning appeals (eg Tinkers Bubble, Kings Hill) the planners now prefer, wherever possible, to let sleeping dogs lie.
If I don’t apply for permission first, what should I do before moving on?
Prepare your case thoroughly beforehand so that when the planners come you can show them that you understand their concerns and can give them a well presented planning application that addresses these concerns. For information on doing this, See Briefing XXX
Does living on the land affect my eligibility for legal aid?
Yes. There is no legal aid for planning applications or planning appeals, but you may be able to get legal aid for the High Court or the Court of Appeal, though this is getting increasingly difficult. You are more likely to get legal aid if you are living on your land and in danger of eviction, than if you are living somewhere else.
What about the Human Rights Act?
Another argument for moving onto your land before making an application is that this is normally the only way of taking advantage of the Human Rights Act. Article 8 of this Act states that local authorities should not, without good reason interfere with a citizen’s rights for respect for his home. It does not defend the right of a homeless person to have a home, or the right of somebody living in one place to have a future home elsewhere. It normally only applies to the home in which you are living at the time (There may be an exception when you are facing eviction from this other home). (see Briefing xxx on the Human Rights Act).
Unfortunately, in the European court case, Chapman v the UK, the court made great play of the fact that “the applicant moved onto the land in her caravans without obtaining the prior planning permission which she knew was necessary to render that occupation lawful”. This argument (championed in the court by the UK judge, Lord Justice Schiemann, a former planning barrister) was quite out of order, given that PPG18 states that it is not an offence to carry out development without planning permission (see above), but it seems to have been influential in Mrs Chapman losing her case. However, the fact remains that if Mrs Chapman had not moved on, then it is unlikely that she would have been able to bring the case to the human rights court — Catch 22. again.
Despite Chapman, there have been several appeals where people who have moved onto land without permission have won on a human rights ticket, and appeals inspectors are unlikely to regard a retrospective application as unlawful, because they deal with them all the time. At the moment, as far as the human rights act is concerned, you have a better chance if you move on, than if you don’t. When is it more advantageous to negotiate with the planners or apply for permission before moving on?
Circumstances will vary in every case, but in general it is fairly large scale projects dependent upon high capital investment, outside funding and/or a respectable public image that are more likely benefit from approaching the planners first. To benefit, a proposal will need to have a fairly good chance of attracting the support of planners and com mittee members, for example by showing that it conforms to development plan policies and national guidance, and that it offers economic, social and environmental benefits to the community. Support from people with letters after their name, and the ability to afford planning advice and expert witnesses are also highly advisable for this kind of application.
Applicants should be aware that it is not uncommon to receive warm encouragement from planners when a proposal for a sustainable development is initially proposed, only to find that the same planners oppose it when it actually comes to committee. The reasons for this are not always clear, but it may involve a junior planner being over-ruled by a senior one, or the result of pressure from influential local objectors. It is advisable to get as much as you can out of the planners at this initial “warm” stage in writing, otherwise it is valueless.
What about moving on by degrees?
There is another scenario that may work quite well for certain people. This is to begin by working on the land, pulling it into shape and building, say, a barn or other building which benefits from permitted agricultural development rights (see briefing xxx); or alternatively applying for permission for a building such as an educational centre for courses. Once the proj ect is established and accepted by local neighbours and planners, then an application for residence may be less controversial. The spectre of residence may also be gradually introduced by the siting of “caravans” for seasonal agricultural/forestry use (see briefing X).
For some groups, building a barn or educational centre before allowing residence may also be a useful winnowing process. It can be a good way of establishing who in the group is in tune with the aims of the project before the greater commitment of establishing a dwelling on site is made.
Are there any ethical questions raised by the act of moving on before applying for planning permission?
Yes. You should bear in mind that the tactic of carrying out a fait accompli which planners have difficulty in undoing is used by moneygrubbing cowboy developers all the time. House demolishers and tree-fellers are particularly keen on this tactic; the appalling Trago Mills factory outlet, plonked in the middle of beautiful Cornish countryside, utterly dependent upon car transport, was established in this manner.
By moving on first, and applying for permission later, you are taking advantage of the flexibility of the English planning system and undermining its authority. Insofar as the planning system discriminates against low income people and so distorts the rural economy, this may be a good thing; but insofar as the planning system is the only defence we have against the rape of the countryside by the legions of capitalist speculators that are out there looking for every opportunity to make a quick million, this is not such a good idea.
For that reason, we at Chapter 7 wish to make it clear that while we are advising low impact dwellers seeking a sustainable rural livelihood to move on first and ask questions later, we are also lobbying the Government urgently to introduce policies that will render this approach unnecessary. We are telling the Department of the Environment that if they don’t introduce policies that distinguish between low impact and high impact development, and if they don’t provide anywhere for low income people to live sustainably in the countryside, then the system is going to break down.