Thanks to the Edinburgh Evening News for reporting this local drama (here). The best bit are the comments that have been posted. Given the amount of ”planner bashing” that often goes on, it is heartening to see how little sympathy is expressed for the dentist.
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Do you have statistics in regards of default/direct action? How often are these powers exercised in scotland and are there time limits within which they must exercise these powers? It appears every now and again they do send in the lads to rip up paving slabs and petunia gardens but, I would be interested to know how often and in what type of cases these powers are actually exercised.
I have been looking into the new legislation and the implications of the human rights act 1998 on the new provisions in relation to enforcement. It appears to me that revocation of appeal on ground A in enforcement appeals leaves human rights issues standing on shaky ground. I fired off an
FOI. The response? My request was “lost” the first time and upon requesting a review I received the following,
“It is considered that the planning system as a whole takes into
account the balance between public and individual interests in the way
it regulates development. The enforcement provisions apply where
individuals have allegedly failed to comply with the requirements of the
system and therefore it is difficult to see how use of the enforcement
system where an individual has failed to comply with planning law would
of itself give rise to any unjustified interference with the individuals
rights.”
Neil, I have noticed that even in the new edition of your book you make a much stronger case for human rights implications on planning decisions especially in relation to enforcement and indeed the case law has developed quite a bit since the 2nd edition. However, it appears from the response by the Directorate that they may not concur. If human rights issues are going to be side stepped at the appeal stage then where do human rights issues stand in defence of direct action?
“Review of Planning Enforcement” (Scottish Office, 1997) reported that only two planning authorities had used direct action powers to any significant extent. I’ve not seen any more recent statistics – has anyone else?
The 3rd edition of my book has more focus on human rights because the earlier edition predated the Human Rights Act coming into effect. There is caselaw now to refer to. However, human rights arguments have featured much less in planning cases than was expected, because planning has always balanced competing rights.
Lawyers have been disappointed at the failure of the Scottish Government to produce a detailed explanation why the new legislation is human rights compliant. We’ll have to wait for a legal challenge to force more out of them. Human rights are by nature broad brush, so compliance is difficult to confirm.
I mention in the book the O’Brien case, in which direct action was held disproportionate where there was a pending planning permission appeal. Human rights make it less straight-forward for planning authorities to take direct action – or certainly give them more to consider.