Minutes:
A Question had been submitted by Councillor C Hodson under Procedural Rule A9.
In accordance with the Constitution a written answer to the question had been circulated to Members.
Question from Councillor Hodson
Concerns have been raised by Members of this Council about the perceived lack of enforcement action relating to derelict buildings in the Ward of Westward Ho! These premises are a blight on the landscape of Torridge’s principal tourist resort.
Atlantic Flats, in private ownership, would appear to be only fit for demolition. Despite continuous reports of trespass by young persons and alleged illegal practices and transactions taking place within the ruins, neither the Council, the Police or the owner have been able to progress a resolution.
The West Beach site, currently in the hands of the Receiver, has remained as a partly constructed block of flats, which although fenced has attracted trespassers who have entered the grounds, have climbed up several floors and graffiti tagged the windows.
The perpetrators, that have been witnessed by residents of neighbouring properties, are exposed to considerable risk of injury or indeed fatality. It is not perceived as acceptable to the community that none of the statutory bodies are able to remedy this significant issue.
I am therefore asking for a written response which outlines the powers of the Local Authority and any constraints or limitations in taking enforcement action.
Answer
Planning Powers – Town and Country Planning Act 1990
From a planning perspective, the only option open to us is a S215 Notice. The wider development options, including the suggestion that the landowner gets a developer on board, which would clearly be the best way forward have been discussed with him and discounted at this time.
Interestingly, the Council has not received a public complaint regarding Atlantic Flatlets and a s215 notice has not been discussed in recent history.
Planning Enforcement Officers have advised that they drive past this site on a reasonably regular basis. They consider that this building may be suitable for a s215 notice subject to the usual discussions (the largest of these is ascertaining what the Council could reasonably demand of the landowner through the notice and the appropriate time for compliance) and consideration of the following:
Good Practice Guide
“Local Planning Authorities (LPAs) would be well advised to ensure that the notices they issue are clear, precise and unambiguous. The letters should aim to achieve a good quality, lasting solution. Where necessary, specialist input should be sought at an early stage, for example from the LPA’s Conservation or Building Control Officers, or independent engineers with expertise. It would be prudent for all letters to be subject to scrutiny by the LPA’s legal advisers. Provided the notice is skilfully composed, the requirements are clear, and the LPA has a precise timescale then, if anything goes awry, the LPA has certain formal remedies provided within law to which it can resort. Section 215 action should not be taken against land the poor condition of which is attributable in some way to the carrying out of operations or a use of land in accordance with Part III of the Town & Country Planning Act 1990”.
Evidence Base
A clear and well-presented case that stresses the adverse impact of the site on the local street scene has proven more effective than an overly technical presentation regarding the definition of ‘loss of amenity’. The use of site visits and photographic evidence can carry a lot of weight in presenting the LPA’s case to magistrates. Because of the appeal route – the burden of proof would need to be beyond reasonable doubt.
Right of Appeal
The manner of appeal is via Magistrates Court on the following grounds:
(a) that the condition of the land to which the notice relates does not adversely affect the amenity of any part of the area of the local planning authority who served the notice, or of any adjoining area;
(b) that the condition of the land to which the notice relates is attributable to, and such as results in the ordinary course of events from, the carrying on of operations or a use of land which is not in contravention of Part III;
(c) that the requirements of the notice exceed what is necessary for preventing the condition of the land from adversely affecting the amenity of any part of the area of the local planning authority who served the notice, or of any adjoining area;
(d) that the period specified in the notice as the period within which any steps required by the notice are to be taken falls short of what should reasonably be allowed.
Once an appeal has been heard by a Magistrates Court, a further appeal may be brought to the Crown Court by either the appellant or the LA.
Risk to the Council
Section 215 allows an LPA to take positive action and unlike, for example, stop notices or Article 4 directions, would not place any prohibition or restriction upon the land. Loss or injury attributable to the imposition of the notice would be at best minimal and it would be unlikely therefore that an LPA would be liable for compensation should the s215 notice not be upheld.
Commencing the usual process would involve contacting the landowner to express our concerns and intentions to move towards a 215 Notice. This often results in the desired outcomes taking place even without a formal notice being served. We will need to consider the condition of the site, the impact on the surrounding area and the scope of our powers in tackling the problem before we decide to issue a notice. Careful consideration about what it is we are requiring the owner to do – e.g. site clearance or demolition could in itself require planning permission – and whether the main issue of concern would be best dealt with via the routes available under the Building Act.
The S215 process can be costly and take time to prepare and the Council has historically had set aside £111,000 to support the issuing of S215 notices but that was repurposed by full Council in September 2022 to help the Council balance it’s budget.
The Council could consider its position in terms of S215 if that is something the members wished but it is likely the improvements achieved would be small in scale. In addition, a budget for this activity would need to be identified.
Building Control and The Building Act
To provide some context, Dangerous Structures in terms of the Building Act and Dangerous structure in terms of if a site is accessed are separate issues. The Council has limited powers under sections 77 and 78 of the Building Act in that we can make safe when there is a clear danger to members of the public i.e., bits about to fall off or over onto a public highway/ right of way. This doesn’t cover if the building is unsightly.
The owner has ultimate responsibility to make the structure safe but if they don’t, The Council can apply to the magistrate if a lesser sense of urgency under section 77 or section 78 allows us to act immediately and recharge the owner if they are unable/unwilling and there is an imminent threat. If the Building is within its own curtilage and doesn’t affect the public, we would not usually take action as the danger can fall on its own land. The securing of the site to prevent unauthorised entry is something that the Environmental Protection team have been seeking to have the owner of Atlantic Flatlets achieve and, whilst agreed is dangerous, it is to people making a choice to enter rather than walking past going about their business.
If the Council believes there to be a major structural issue, we can apply to the magistrate for demolition. The problem is that it’s not in my opinion safe to access inside to carry out the assessment due to the fire at first floor and the evidence that unauthorised entry/ drug use may have taken place.
Officers have not inspected the interior of Atlantic Flatlets but have visited site in the past week and had a look where possible at the building without accessing inside.
There are no signs of major structural movement evident externally and apart from a small section of upvc at first floor which should really be remove, if possible (this will be raised with the owner). Officers will continue to monitor the site on an ongoing basis and react to any further issues that arise.
One avenue of that might warrant exploration is section 79 of the Building Act as below. The Council has no recent experience of serving notice under the provisions of this act but it remains an option to consider should the owner fail to improve the site.
SECTION 79 Ruinous and dilapidated buildings and neglected sites.
(1)If it appears to a local authority that a building or structure is by reason of its ruinous or dilapidated condition seriously detrimental to the amenities of the neighbourhood, the local authority may by notice require the owner thereof—
(a)to execute such works of repair or restoration, or
(b)if he so elects, to take such steps for demolishing the building or structure, or any part thereof, and removing any rubbish or other material resulting from or exposed by the demolition,
as may be necessary in the interests of amenity.
(2)If it appears to a local authority that—
(a)rubbish or other material resulting from, or exposed by, the demolition or collapse of a building or structure is lying on the site or on any adjoining land, and
(b)by reason thereof the site or land is in such a condition as to be seriously detrimental to the amenities of the neighbourhood,
the local authority may by notice require the owner of the site or land to take such steps for removing the rubbish or material as may be necessary in the interests of amenity.
(3)Sections 99 and 102 below apply in relation to a notice given under subsection (1) or (2) above, subject to the following modifications—
(a)section 99(1) requires the notice to indicate the nature of the works of repair or restoration and that of the works of demolition and removal of rubbish or material, and
(b)section 99(2) authorises the local authority to execute, subject to that subsection, at their election either the works of repair or restoration or the works of demolition and removal of rubbish or material.
(4)This section does not apply to an advertisement as defined in [F156section 336(1) of the Town and Country Planning Act 1990].
[F157(5)This section has effect subject to the provisions of [F158the Planning (Listed Buildings and Conservation Areas) Act 1990] relating to listed buildings, buildings subject to building preservation [F158notices] and buildings in conservation areas.]
A key point to consider is that if a notice is served and ignored, carrying out the works in default of the owner maybe costly as realistically demolition and clearing the site would be the sure-fire way to stop ongoing enforcement. Whilst a charge can be made on the property it may take time to recoup the costs.
S79 would require the Council to evidence to the Court that demolition was necessary. If the Council wasn’t successful in that argument then it would not be possible to recover sums expended.
The Council does not, at this time, have the available resource to pursue this option.
Environmental Protection
Notice to prevent unauthorised people entering a property or dangers to public health from an empty property - Section 29 Local Government Miscellaneous Provisions Act 1982
This act enables local authorities to undertake works to an unoccupied building or one whose owner is temporarily absent, to prevent unauthorised entry or prevent it becoming a danger to the public's health. 48 hours' notice is required after describing any proposed works to secure a building unless it is necessary to undertake the works immediately or it had been impossible to ascertain the owner. Note, all costs are recoverable. However, the first port of call would always be to encourage building owners to take on maintenance and repairs themselves, and Environmental Protection Officers are always available to provide expert advice on these matters.
With regard to the Atlantic Flatlets site in Westward Ho! the responsibility for safety sits firmly with the owners of the site. This even extends to a duty to trespassers. Where issues are apparent these have been raised with the owners, and action has been taken by them to try to deter and prevent access. However, it is acknowledged that this is a difficult site to secure fully, especially in the face of persons determined to gain access.
Following the most recent reports of unauthorised access in June 2022, an inspection by an Enforcement Officer from Regulatory Services was carried out and this found that although the premises were secured by 2-meter-high Heras Fencing and chip boarding at several ground floor windows, access was still being gained. We therefore contacted the owners to advise them of remedial steps that need to be taken to address this issue, and an action plan was developed. This plan involved the owner commissioning a local business manufacturer to design, build and instal metal shutters to all the ground floor and 1st floor doors and windows. Unfortunately, on the 13th October 2022 we were informed by the owners that the company providing the contract were not able to complete the works and therefore the owners are now searching for an alternative company to complete the works. Officers continue to work closely with the owners and will continue to do so while undue risks remain at the site.
West Beach.
In general terms it is recognised that West Beach development is unsightly in its incomplete state and that there are potentially irregularities between what has been consented by the Council and what is partially constructed. We await the conclusion of the Receivership process, at which point there will be an interested party with whom matters can be addressed.
Until this process has been undertaken it is not possible to make assessment of the relevant powers, requirements or appetite of the Council to intervene in any way.
In addition and on the matter of community safety, Regulatory Services were contacted on 1st November 2022 by a concerned resident who stated that the site was unfinished, and pigeons were entering open units within the construction. An inspection by an Enforcement Officer from Regulatory Services was carried out and the site is adequately secured with no signs of unauthorised access to units of accommodation (by pigeons or people), advice has also been given to the complainant regarding the pigeons in the area.
It is clear that people have been accessing the site in general, the graffiti tags are clear evidence of that. This matter, and the risks associated with it have been raised to the Receivers as the responsibility for site security is theirs or the site owner’s.
Following a supplementary question asked by Councillor Hodson in relation to enforcement budgetary powers, she was advised by the Chief Executive that the rules on A9 questions state that a supplementary question can only be asked if it directly relates to the subject of the question already asked.
Councillor Hodson then asked the following supplementary question:
“Where is the budget to take these actions that have been outlined”.
The Chief Executive agreed to provide a separate response.
Councillor Laws stated the above information would be published on the Westward Ho! website.