ANALYSIS OF RESPONSES TO INDIVIDUAL QUESTIONS
Fixed Penalty Notices (FPNs)
Q1. Do you support the proposal that penalties should be increased for continuing breaches and if not, why not?
12. Of those who expressed a view, there was clear majority support for the proposal that penalties should be increased when breaches continued. Respondents felt that the prospect of increasing penalties would provide significant incentives for compliance. It was also suggested that if penalties were not to increase then there was potential for developers to absorb the costs of the FPN into their business plan and continue the breach. One planning authority response summed up this concern by noting that, unless penalties were increased over time, some developers might view FPNs as a 'running cost'.
13. While, as noted above, there was very strong support for increases, it should be noted that responses were primarily from enforcing authorities and community groups. Among business and developer interests there was some support, although most respondents in these categories did not offer any comments.
14. There were some suggestions that the penalties should be linked to the scale of the breach or, alternatively, to the scale of the development.
15. Some concern was expressed that the requirement to issue repeated enforcement or breach of condition notices could be an additional burden, in terms of bureaucracy and time, on planning authorities. (see paragraphs 14-15 above) In this respect a number of responses suggested that it might be simpler to have a single notice which, if not complied with, would be followed by the issue of FPNs for increasing amounts after various time periods. However several of these responses noted that, while the respondent thought such an approach desirable, they appreciated that implementing such a mechanism would not be possible through regulations as they would require amendment of the provisions of the primary legislation.
16. Similar comments were made that it would be possible for a developer to appeal against each successive enforcement notice (although the number of current grounds for appeal will be reduced by the 2006 Act and we envisage that the amount of appeals will be reduced accordingly), with respondents querying whether a successful appeal against a later enforcement notice would quash earlier ones and, if so, whether any penalty previously paid would be returned.
17. More importantly a number of responses raised strong concerns as to whether there were legal issues to be considered. Concern centred on whether the wording of the 2006 Act that only one FPN may be issued in respect of a particular step or activity could prevent service of further FPNs, citing subsequent enforcement notices requiring the same steps or activities to be undertaken, since the facts of the breach would remain the same and the steps or activities required would not change.
18. In answering this question a number of respondents expressed views on the proposed amounts and levels of increase of the Fixed Penalties. For the purposes of this report, and to avoid repetition, these have been incorporated with the responses to Q2 and Q3 respectively.