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In a civil or quasi civil matter (concerning obtaining a planning

enforcement order) can questions be...
In a civil or quasi civil matter (concerning obtaining a planning enforcement order) can questions be put to a suspect to determine whether a breach has been concealed in an interview under caution? or is an interview under caution used only in criminal cases?
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Answered in 12 hours by:
10/23/2013
Alice H
Alice H, Solicitor/Partner
Category: UK Law
Satisfied Customers: 2,850
Experience: Partner in national law firm
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My name isXXXXX and I am a Solicitor based in London. I'm happy to help with your question today.

Under the Town and Country Planning Act 1990 an enforcement notice can be issued where there has been a breach of planning control. Any subsequent breach of the enforcement notice is a criminal offence and carries a criminal penalty.

So, to answer your question, if there has been a suspected breach of an enforcement notice the 'suspect' could be invited to an interview under caution carried out in accordance with the Police and Criminal Evidence Act 1984.
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Customer reply replied 4 years ago

Thanks.


There has been no breach of an enforcement notice, so no criminal offence. The question relates to where it is suspected that a breach of planning control has been delibrately concealed, and consideration is being given to applying to the magistrates' court for a planning enforcement order under s.171BA TCPA.


 


Since no criminal offence has been committed, and seeking a planning enforcement order is not a criminal matter was wondering if appropriate to invite suspect to an interview under caution to clarify whether there was deliberate concealment?


 


Can an interview under caution be used in civil cases?


 


 

Concealment under planning law is not a criminal offence as far as I can see.

Therefore, an interview under caution, under the Police and Criminal Evidence Act 1984, would not apply.
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Customer reply replied 4 years ago


Thanks.

No problem. Please remember to rate my answer so I am credited for time. Thank you for your custom.
Alice H
Alice H, Solicitor/Partner
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Customer reply replied 4 years ago

 


Hi


 


My question relates to service of documents.


 


S.171BB (4) of the Town and Country Planning Act 1990 provides that an Application for a Planning Enforcement Order should be served on (i) the owner and occupier of the land, and (ii) any other person having an interest in the land.


 


The making of the PEO Application to the magistrates’ court is a civil matter.


 


Please clarify whether the Application should be served on a relevant party following the Civil Procedure Rules (Part 6?) or as provided for in S.329 of the 1990 Act.

The Civil Procedure Rules do not apply.

s.329 under the Act is the procedure for service of documents.

Alex
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Customer reply replied 4 years ago

O.k, please clarify why you say that Civil Procedure rules do not apply.


 


If the defendant does not appear at the hearing, the magistrates will only proceed in his absence if they are satisfied that the defendant was properly served within a reasonable time before the hearing. (S.55 Magistrates Court Act).


 


Since the matter will be brought before the magistrates (civil jurisdiction?) how is it determined what procedure is to be used?

The Civil Procedure Rules Act 1998 which is the law behind the Civil Procedure Rules states:

s.2..the Rules apply to proceedings in -

(a)county courts;
(b)the High Court; and
(c)the Civil Division of the Court of Appeal

The Criminal Procedure Rules the rules apply in all Magistrates' Courts, the Crown Court and the Court of Appeal (Criminal Division).

Although the issue that you're dealing with is in the Magistrates Court there is no specific procedure that applies to planning cases.

Service under the Town and Country Planning Act 1990 is determined by s. 329, which in fact mirrors the procedure for service under both [procedure rules anyway.

Hope this helps. Happy to discuss further but please do remember to take a moment to rate my answers.

Alex
Alice H
Alice H, Solicitor/Partner
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Customer reply replied 4 years ago

Hi


 


Following from the above, with regard to hearsay evidence, it seems that in civil proceedings evidence will not be excluded on the grounds that it is hearsay (s.1 civil evidence act '95).


If however an officer's statement includes hearsay, under what procedure would the intention to rely on hearsay evidence be served on the other party, since civil procedure rules don't apply in the magistrates court?

Good Evening

Please outline what hearsay evidence you intend to adduce.

Alex
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Customer reply replied 4 years ago

Hi

It is not clear as yet, but was wondering what the procedure would be in these circumstances as far as notifying the other party.

 

 

Customer reply replied 4 years ago

 


Hi


It is not clear as yet, but was wondering what the procedure would be in these circumstances as far as notifying the other party.

I have no idea about the hearsay aspect I'm afraid. Its not something I've come across.
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Good Afternoon

I've looked at this for you in more detail.

For hearsay evidence the 'Magistrates Courts (Hearsay Evidence in Civil Proceedings) Rules 1995 apply.

I've attached the rules for you:

http://www.legislation.gov.uk/uksi/1999/681/contents/made

The definition of hearsay is set out in the Civil Evidence 1995 as below:

http://www.legislation.gov.uk/ukpga/1995/38/contents

Alex
Alice H
Alice H, Solicitor/Partner
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Customer reply replied 4 years ago


Thanks, XXXXX XXXXX

No problem. All the best.

Alex
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Hi

I am following up our conversation to see how you got on with the issue. If you need any further help then please let me know - remember I am a qualified UK Solicitor and able to help on most aspects of English Law. I am London based and usually able to respond to your query very quickly.

Regards
Alex Hughes
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Customer reply replied 4 years ago

Thanks, XXXXX XXXXX come back on the other issue later.


 


I do have another question though:


 


 


A planning injunction (s.187BTown and country planning act 1990) was granted which provides that no caravans are to be brought onto the land without express planning permission of the local authority, or by Order of the court.


 


However, further to paragraph 5 of Schedule 1 of the Caravan Sites and Control of Development Act 1960, an exempted organisation (e.g. caravan club) may issue a certificate for the use of land as a caravan site without the requirement of a licence.


 


a) Although the 1960 Act authorises the caravan club to issue a certificate for the use of land as a caravan site, will the injunction on the land prevent caravans being brought onto the site?


 


b) If caravans are brought onto the site does this mean the parties responsible will be in breach of the injunction?


 

Customer reply replied 4 years ago

 


Hi, I hadn't hear back on this question. Are you able to help with it?


 


A planning injunction (s.187BTown and country planning act 1990) was granted which provides that no caravans are to be brought onto the land without express planning permission of the local authority, or by Order of the court.


 


 


 


However, further to paragraph 5 of Schedule 1 of the Caravan Sites and Control of Development Act 1960, an exempted organisation (e.g. caravan club) may issue a certificate for the use of land as a caravan site without the requirement of a licence.


 


 


 


a) Although the 1960 Act authorises the caravan club to issue a certificate for the use of land as a caravan site, will the injunction on the land prevent caravans being brought onto the site?


 


 


 


b) If caravans are brought onto the site does this mean the parties responsible will be in breach of the injunction?

Why was the injunction obtained?
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Customer reply replied 4 years ago


To prevent gypsy's from bringing caravans onto the site.

Paragraph 5 of Schedule 1 of the Caravan Sites and Control of Development Act 1960 states that an exempted organisation (e.g. caravan club) may issue a certificate for the use of land as a caravan site without the requirement of a licence for "leisure use". Caravans entering a site for "residential use" would not be exempt and would, therefore, be in breach of the injunction.
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Customer reply replied 4 years ago


Thanks.


 


To clarify, if the caravans are brought onto the site for leisure purposes this would not be in breach of the injunction?

It depends on the terms of the injunction.

If the injunction says no caravans can enter the site full stop then strictly speaking any caravan entering would be in breach regardless of their purpose.

However, if the injunction permits entry for leisure purposes and caravans enter for this sole purpose then it would not be a breach.

So, it depends on the wording of the injunction.

Obviously there's a difference between leisure use and residential use. It would be fair to say that people from the travelling community are not leisure users - when they enter a site they are taking up residence.

If the injunction is directed at a particular group of people then they would be in breach if they fail to comply with the terms. However an injunction cannot be directed to the world at large.

Alex




Alice H
Alice H, Solicitor/Partner
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Satisfied Customers: 2,850
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Customer reply replied 4 years ago


The injunction says that unless express planning permission is granted, no caravans should be sited on the land for residential purposes; and no development as defined in s.55 TCPA 1990 is to take place on the land.

 

The purpose was to prevent gypsys bringing caravans onto the site.

 

It seems part 5 of schedule 2 of the General Permitted Development Order allows land to be used as a caravan site, in circumstances linked to Paragraph 5 of Schedule 1 of the Caravan Sites and Control of Development Act 1960.

 

 

The question I suppose is:

a) As the GPDO grants permission (arguably not express permission as required in the injunction) for use of land as a caravan site and refers to the 1960 Act re use by a caravan club for the siting of up to 5 caravans for leisure use - if the caravan club were to bring caravans onto the land for leisure purposes as permitted by the GPDO/1960 Act would this amount to a breach of the injunction?

 

b) Does the injunction take away permitted development rights?

 

 

Customer reply replied 4 years ago


The injunction says that unless express planning permission is granted, no caravans should be sited on the land for residential purposes; and no development as defined in s.55 TCPA 1990 is to take place on the land.


 


The purpose was to prevent gypsys bringing caravans onto the site.


 


It seems part 5 of schedule 2 of the General Permitted Development Order allows land to be used as a caravan site, in circumstances linked to Paragraph 5 of Schedule 1 of the Caravan Sites and Control of Development Act 1960.


 


 


The question I suppose is:


a) As the GPDO grants permission (arguably not express permission as required in the injunction) for use of land as a caravan site and refers to the 1960 Act re use by a caravan club for the siting of up to 5 caravans for leisure use - if the caravan club were to bring caravans onto the land for leisure purposes as permitted by the GPDO/1960 Act would this amount to a breach of the injunction?


 


b) Does the injunction take away permitted development rights?

Customer reply replied 4 years ago


Hi, I didn't hear back on the last question...


 


 


The part I wanted some clarification on is:


 


a) As the GPDO grants permission (arguably not express permission as required in the injunction) for use of land as a caravan site and refers to the 1960 Act re use by a caravan club for the siting of up to 5 caravans for leisure use - if the caravan club were to bring caravans onto the land for leisure purposes as permitted by the GPDO/1960 Act would this amount to a breach of the injunction?


 


b) Does the injunction take away permitted development rights?

Customer reply replied 3 years ago


Hi


 


Could you let me know what an appeal by way of case stated is? This would be from the magistrates court to the high court (civil matter). Thanks

I'm finding it difficult to respond to your posts. I think you will have to re-post the last questions separately. It may be a technical issue but this is the only way in which I can think of resolving the problem. Please ask for me personally. Hope this is OK with you.
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