Local residents in have been complaining for some years about the state of a hoarding erected by developers at 45 Kingsend, Ruislip. Planning Committee minutes of 6th July 2000 stated: "45 Kingsend, Ruislip Safety of hoardings. Surrounding site being investigated and necessary action to be taken".
I raised the matter again with the Council in August 2008. I asked what powers the Council had to remedy the situation and whether they had powers to intervene and replace the hoarding with a more suitable structure. They said that “..apart from our highway crews attending the site to make safe any danger we do not have the authority to do more” (click here) and “... we do not have the powers to remove eyesores”(click here).
I wrote to the Council on 13th November 2008 pointing out that :
Under Section 215 of the Town & Country Planning Act a Local Planning Authority (LPA) has the power to take steps requiring land to be cleaned up when its condition adversely affects the amenity of the area by serving a notice on the owner requiring that the situation be remedied.
If the name or address of the owner cannot after reasonable inquiry be ascertained, then under Section 233 (7) of the Local Government Act 1972 the notice could be served by leaving it conspicuously affixed to some object on the land i.e. the hoarding.
An LPA can undertake the clean up works themselves and to recover the costs from the owner under S219 of the Town & Country Planning Act 1990.
If it proved difficult to recover the costs a legal charge could be placed on the land.
In the Town & Country Planning Act 1990 Section 215 Best Practice Guidance, it mentions that Section 215 provide an effective mechanism for tackling unsightly land. Reference is made to its use to remove eyesores. It says that it has been effectively used on large vacant industrial sites, town centre street frontages, rural sites, derelict buildings, and semi-complete development as well as the more typical rundown residential properties and overgrown gardens.
The Best Practice Guidance also makes the following points which are relevant in this case:
In dealing with an offending site the recommended steps are identification of the owner e.g. via Land Registry, negotiation, and then if no progress has been made, the issuing a warning letter. Experience has shown, it says, that landowners are usually quick to take action once the warning of a S215 notice has been sent.
It provides a sample warning letter which includes the sentence: “I advise that if prompt progress is not made in terms of remedying the poor external condition of the premises and a guarantee given to the Council by you that such works will be undertaken, the Council has the option to take enforcement action under Section 215 of the Town and Country Planning Act 1990”.
The Council took up my suggestion to use the S215 to deal with the problem but instead of following the best practice route put in a report to the North Planning Committee requesting permission to issue a S215 Notice against the owners. The agenda for the of 9th December meeting it duly stated:
Reports - Part 2 – Members Only - Enforcements - 45 Kingsend Ruislip West Ruislip Hoarding/fence around site.
Recommendation: Authority to serve untidy site notice (The Council later confirmed that this referred to a S 215 notice)
The report in Part 2 is not made public because it contains exempt information as defined by law in the Local Government (Access to Information Act 1985). This is because: The report contains information, which if disclosed to the public, would reveal that the authority proposes (a) To give under any enactment a notice under or by virtue of which requirements are imposed on a person; or (b) To make an order or direction under any enactment (Paragraph 13 of the Schedule to the Act).
Officers had decided to exclude the public from seeing the report and attending the relevant section of the meeting even though this not mandatory under the legislation. This was a strange course of action to take as no obvious benefit would accrue from it. On the contrary interested parties were denied the opportunity to comment on the report prior to the meeting or attend the meeting itself. The minutes of the meeting indicate that the exclusion was not discussed.
The exclusion was in my view unlawful for the following reasons:
1. Decisions to treat information as exempt are qualified by a public interest test. The legislation says that information is only exempt if and so long as ... the public interest in maintaining the exemption outweighs the public interest in disclosing it. See The Local Government (Access to Information) (Variation) Order 2006 (No 88) Schedule 12A (10). Its very difficult to see how the public interest was served by this decision.
Article 13.02 of the LBH Constitution (page 66) says "All decisions of the Council are made in accordance with the following principles: .. (b) a presumption in favour of openness and (g) making clear what options were considered and rejected in the making of a decision and giving the reasons for that." Officers did not give their reasons to the Committee for deciding that the public interest in maintaining the exemption outweighed the public interest in disclosing the information.
2. The proposal to serve a S215 notice on the owner had been made public in the agenda. The report could not therefore have contained any information which would have revealed what the Council proposed. It had already been revealed in the agenda.
3. The Local Government (Access to Information Act) 100A (4) states that “A principal council may by resolution exclude the public from a meeting during an item of business whenever it is likely, in view of the nature of the business to be transacted or the nature of the proceedings, that if members of the public were present during that item there would be disclosure to them of exempt information...”. No such resolution was made.
4. Part Four B 12(1) on page 112 of the LBH Constitution says "Reports which in the opinion of the Head Of Democratic Services contain exempt in formation must be marked "Not For Publication" ..... Members shall, by resolution, confirm or or vary this designation." The decision to treat the information as exempt was not made by the Head of Democratic Services but by officers from Democratic Services and Planning. The designation was not, as stated above, confirmed by resolution.
A resolution was passed at the 9th December meeting to take enforcement action under Section 215 and to issue a notice on the owner to demolish the existing hoarding and replace it with a hoarding of new materials.
On 23rd February I asked if the notice had been served. I was told that it had not but a S330 Notice had been served to ascertain the legal interest in the land. I asked when the S330 Notice had been served but I have not been given this information. A S330 Notice, in my understanding, is not appropriate in the case of an empty plot. I asked if a Land Registry search, which would have been the appropriate means of identifying the owner, had been made but again I have not been told.
What this does reveal is that on 23rd February - 4 months after I had explained that a S215 could be used the Council had taken no action to ascertain the owners name and address.
On 13th March a S215 notice was attached to the offending hoarding.
On 25th March I wrote to Hugh Dunnachie, LBH Chief Executive, drawing his attention to these issues and asking what steps will be taken to remedy matters in particular the unlawful exclusion of the public from meetings.
I received a reply on 9th April to which I responded saying he had not addressed the four points I had raised, for example he had not explained why the exclusion could have been lawful when no resolution had been passed.