Power of entry in section 29(10) of Local Govt (Misc) Act 1982 - is it used?

Dear all

I am new to the forum but you seem like nice people and hopefully you will be able to help the LGA with an enquiry from DCLG.

The government is reviewing powers of entry with a view to reducing them or limiting their impact. They have picked up on the power of entry under section 29(10) of the 1982 local government (miscellaneous provisions) act. As far as I can tell councils are most likely to use the powers of entry as part of tackling empty homes. DCLG have asked us for information on how/whether councils use the 1982 power, and I notice that there have been occasional forum posts about this. It would be helpful to know if the power is used, and if so how often.

If it is used then we may need to make a case to DCLG about why we need to keep it, and why repealing it would be a problem.

If you have any thoughts on this please let me know. Thanks

Hilary Tanner

Adviser

LGA

Forums: 
Other enforcement

Hi Hilary,
Although it is not a power that I have made use of, my colleagues in Regulatory Services use Section 29 of the Act to secure buildings. This inevitibly requires entry into the property, if for no other reason than to ensure that you are not boarding any one into it! No doubt should the power remain it is one that I will make use of in the future, on cases where my Reg Services collegues are not in a position to act.
A loss of the power would reduce the options available to empty home officers when trying to tackle the many problems posed by empties. If anything can be done to retain it then that would be of benefit to us all...

Thanks
Ruth Whittle
Cheshire West and Chester Council

Hi Hilary
I know that Environmental Health Officers sometimes need to use S29.  However, they are not empty homes practitioners and would not necessarily use this forum.  Is there a way of getting a response from EHOs on this?
 
Hilary Hardwicke, Devon.
 

I used this last week to secure an empty property where the owners failed to engage. It was to shut down ASB and drug misuse at the property.
 
Mark Fisher
Basingstoke & Deane BC

Of all the powers of entry to go after if you believe that government is here to protect property from the majority? Weird. But here's why the PoE is crucial.
Check for occupants. It would be unlawful to secure a property that is occupied, so checks must be made. It would be unlawful to enter the property without the consent of the owner or without invoking the power. There may be an occupier who simply leaves the property insecure. I know Ministers will say that there won’t be anyone in an empty home because squatting is illegal. Doesn’t work like that in reality. I’ve found all sorts of people in insecure empties. It is bad practice to seal up a derelict home (under s29) if there are people in it. I found a corpse once. No POE and I wouldn't have found him and he'd have ended up a missing person for years.
Check for material that may assist in the tracing of the owner. We have to have made a reasonable effort to find an owner before boarding up.
Carry our risk assessments.
Carry our surveys and obtain quotes. 
Carry out works.  Externally fixed security cheapest to fit, but can be a bit short term and can result in damage to the property. We favour external boards held on internal frames. Some structures are such that securing the rear requires access through the property for contractors.
How many? We serve 8 to 10 a year, in addition to those where the power of entry has helped identify the person responsible and that needed no Notice. 
Why is it crucial? The POE and ability to take action straight away are immediate for good reason. That is to deal with the immediate risk of unlawful entry and all that goes with it. S29 Boarding up Notices are often the 'entry level' enforcement option on empty homes. Using it can often draw the owner out of the woodwork. 
4 examples. 

  1. 6-month empty home had been broken into. POE allowed me to find post relating to mortgage repossession (while s29 does not give authority to examine post, other powers do). I tried to locate the owner over the next 3 hours, to no avail. I therefore turned to the mortgagee, who gave assurance that the property would be secured the next day (and it was). POE ensured accurate info on property status was found that then led to swift re-securing without Council expenditure.  
  2. Police requested empty private prop to be secured by Council. Using POE, I found prop to be insecure and unoccupied. Notified Police that property was insecure because of Police action on drugs raid. Over to them to secure it and not to call on Council finances to repair their damage. POE ensured property was secured and also that it was secured by the people that made it insecure.
  3. Crumbling fabric around windows outside was not strong enough to support robust steel grilles, so security had to be fitted from the inside out. POE ensured effective security was fitted.
  4. Using POE, prop confirmed unoccupied, so prepared Notice, called contractors to meet on site. 3 hours later, checked property over again using POE and found a comatose tripper in the basement and two blokes playing cards on the 3rd floor. No POE ensured a vulnerable adult was picked up by care/support services and also ensured that the VA was not incarcerated in a boarded property.

Final cooment from me. EJP might listen to neighbours who live next door to insecure empties. The fear of squatters is one thing, but the fear of vandals and arsonists is a greater worry. The power exists to provide for timely intervention that is for the benefit of neighbours and communities, and not for busy-body jobs-worth Council enforcement officers.

Nick P-G
Reading BC
01189373091

Hilary,
This is a really useful and appropriate power that is especially helpful in dealing with empty property. All empty property is at risk from vandalism and unauthorised entry and  we use the power regularly. My experience is  that in less than 50% of cases where we serve notice to secure a property do the owners deal with the issue and it is left to the Council to take action.
Whilst it is not always essential to gain access in order to secure a property, normally when using the power the property  is  already open  and doors or windows will have been forced or smashed and so no additional cost  or damage is incurred and others have already illegally been into the property, which is why we are there to secure it against further unauthorised entry. 
It is sometimes cheaper  and more appropriate to secure from the inside rather than ruining window and door frames by screwing boarding on the outside, it  allows access for closing of top floor windows and other works to reduce risk such as services to be switched off .  I have used access to turn off taps and also to empty water tanks to reduce the liklihood of burst pipes and to lay bait where there were signs of current rodent  activity. I have also used it to remove food waste that would have created fly and odour problems.
 I have found in the past found keys that allowed doors (especially french doors) and windows to be secured without  the cost and potential visual impact of boarding which tends to advertise a problem and attract further vandalism.  
It is also helpful to allow safe access to the rear of a property which is often where unauthorised access is occuring and it is not safe or reasonable for contractors or staff to use the same access as others, such as climbing over fences.
Overall the impact of allowing access helps to reduce the costs for the owner and insurers as well as being safer for staff and contractors and limits the impact of the property on neighbours and is beneficial to UK Ltd! 

Hillary,
I initiated a warrant application through our LA last week and am currently waiting a court appointment for the warrant. This power plays a large part of our empty property procedure; which I foresee much further use should the power remain
regards
Paul
MDC Empty Property officer

I echo points above that this is a necessary power, generally used for the protection of the wider community.
Local authorities have a duty to board up insecure properties where there may be a danger to public health. So take for example, an insecure property in a row of terraces, a fire in the property would be a danger to adjoining homes. Also, if an intruder is able to access the loft and move from loft to loft to loft of adjoining homes, then they are all vulnerable to burglary. I'm sure no member of the community would like to live under the fear of being burgled in the night because a council no longer has the power to board up the insecure property.
Again, it would be unethical to securely board a property without first checking that there is no-one inside.
It is also not just applicable to empty homes. About 14 years ago Wolverhampton City Council had to use their emergency s29 powers on my occupied home. We had gone out for the day and a man who had not been taking his medication for mental health problems went down our street smashing windows with an axe. It seems he was able to pay particular attention to ours because he was albe to access the rear garden without being disturbed.  Every rear ground floor window was smashed in, even the patio. When returning home, we were shocked at all of the damage but incredibly pleased that at least our home had been secured by the council and we could at least go to bed that night knowing no-one would be able to break in. It would have been a nightmare for us trying to find a contractor to come and do that late on a sunday night.
Hope this offers a slightly different perspective as to why this power is so important
 
Sue Li
 
 

Sue Li

Compulsory Purchase and Enforcement Officer

Derby City Council

I agree the power of entry is useful and should remain. At present, where powers are exercised and premises boarded up, I am aware that different Local Authorities take different views as to whether the cost of works is registerable as a local land chage. Does anyone have a definitive opinion?
Thanks
Clive

Hi Hilary
 
Building on everyone's comments so far
 
This power is used extensively by Local Authorities (LAs) throughout the Country
 
In addition, there is often a protocol between the LA, Police and Fire Service where early intervention to secure the property by the LA is encouraged.

Securing the property ensures that it is likely to suffer less criminal damage, arson, theft (copper and lead) or flooding.
 
It ensures that it protects the owners / occupiers interests as well as the immediate neighbours.
 
There is nothing like an insecure building to attract kids and vandalism, spending a few hundred £ on securing the property is substantially less than the owner would have to spend if the property remained open and was the subject of  vandalism
 
If this power was not available, then the LA is going to be extremely limited as to when they can intervene and the timescales involved would mean that the public/neighbours are placed at an unacceptable risk.
 
The only other options that could potentially deal with an insecure property are:

  • Section 78 Building Act 1984 - dangerous structures - the fact that the property is insecure does not in itself means that the property is a danger. In addition, many Building Control Officers will not use this power unless it presents a risk to the public/wider community (not an internal risk)
  • Housing Act 2004 - Emergency Remedial Action - you would have to show that there was an imminent risk (Cat 1 serious) to the occupier / other residential premises - as there are no occupier -  it would be extremely difficult to use this power.
  • Housing Act 2004 - Improvement Notice - would require a full assessment of property, if we argued Cat1/Cat 2 (Entry by Intruder) - any such notice can only require works to be done after 28 days from date of service.

 
You have a range of other powers such as  Section 79 Building Act 1984, Section 215 Town & Country Planning Act, Environmental Protection Act 1990 etc etc, but you are again in the position of not being able to require works to be done for a minimum period of time and of course you still have to prove the purpose of the notice such as detrimental/seriously detrimental to the amenities / statutory nuisance.
 
In the above cases it would be difficult to justify the service of such notices to secure the property.
 
This power is generally used by Environmental Health, Building Control and Public Protection.
 
It is essential that the powers of entry provision is maintained (technically there is no power of entry in respect of the assessment of the building before a decision about carrying out works is made. Although it is seldom a problem to assess whether the property is insecure from a external visual inspection
 
To remove it would reduce the LA to a trespasser rather than acting within their statutory powers.
 
If the LA damaged the property i.e. damaged the frames when the property was boarded, the the LA would be liable for damages.
 
Therefore, it is essential that this power remains available to LAs.
 
I would like to see this power improved, so that any costs incurred by the LA  can be recovered more effectively (debt recovery procedures)
 
At the moment the debt created as a result of undertaking works in default under Section 29 (LG (M) Act 1982 is a simple contract debt.
 
To recover such a debt the LA would have to pursue the matter through the County Court (Section 293 Public Health Act 1936).
 
There are a range of remedies through the County Court including attachment to earnings, bailiff, charging orders, bankruptcy etc
 
A LA can spend a considerable amount of funds on securing properties (depending on the LA area) and in a lot of cases the debt is written off as the recovery can be difficult and the time and effort involved disproportionate.
 
As an example, if the property is unregistered and you cannot establish the legal ownership of the property, then you cannot issue proceedings in the County Court as you do not have a named person to issue the proceeding against - non recoverable
 
Similarly, if the property is in negative equity, then you can serve notice,  do works in default but you would have no chance to recover your monies as there would be no priority of the debt through the County Court.
 
The notice is not even a local land charge that can be recorded against the property.
 
Which means that if the owner sells the property, then he is not legally required to pay the LA their monies from the sale proceeds, their only option is to pursue the debt through the County Court. Once the owner has sold the property, the amount of work involved in trying to trace the owner, establish whether they have any assets that can be targeted, issuing proceedings and pursuing recovery is disproportionate to level of monies involved. So it is just written off.
 
Despite the LA having to do the works as a result of the owners negligence.
 
It would be beneficial to amend the legislation to put it on a more equal footing with other Legislation that LAs use.
 
Such as the Building Act 1984, Housing Act 2004, Prevention of Damage by Pests Act 1949, where the debt created is a local land charge as defined by Section 1 Local Land Charges act 1975 and provides powers under the Law & Property Act 1925 - to enforce the sale of the property to recover the debt.
 
It would be beneficial for any such charge to bind all "estates and interests"
 
If you are concerned that the balance between State and Individual was not equitable, then you could introduce a demand procedure with the right of appeal to the Magistrates Courts.
 
This would give the owner a method to challenge the LA, if they felt that the costs were unreasonable.
 
 
 
Regards

Andrew Lavender

Hi Hilary
Have received the following comments from the Group Manager, Structural & Public Safety here in Sheffield:
Section 29 of the Local Government (Miscellaneous Provisions) Act 1982 is frequently used to protect the public against dangers to public health and to secure unoccupied properties against un-authorised access.
In order to undertake works in connection with an unoccupied building for the purpose of preventing unauthorised entry to it, it is necessary to use the powers conferred by paragraphs 10 a to c. If the intention is to revoke only paragraph 10a – entry into the building, and leave the powers of entry onto land parts b and c then although this would limit certain courses of action it would not prevent the majority of boarding up / fencing off works that are undertaken to secure a building
Without the general powers conferred by this paragraph the LA would not be authorised to enter onto the land to undertake the necessary works, making the provisions to carry out work where the owner is unable or unwilling to do so un-workable, so some form of power to enter onto land will be necessary.
Regards
Neil Dunk
Legal & Policy Officer
Sheffield City Council
 
 

Neil Dunk

Since April 2012 we have exercised these powers on at least 50 occasions, in the previous year there were almost 90 incidents. Without this right we would not have been able to expedite the securing of unoccupied properties which pose a risk to neighbours and others in particular with regard to the risk from fire setting, drug/alcohol abuse and the theft of boilers/copper piping with the subsequent flooding of adjacent property. By the very nature of the risk, access often needs to be immediate and any delay in gaining access would put the public at risk.

I would just like to add my voice to the list of support to retain this power. Here in Barrow-in-Furness, we use this power frequently for the same reasons as others. The power of entry to the property is used - not just the power of entry onto the land - prior ro securing the property.  This is to ensure that the property is empty, and does not contain someone who may for example be intoxicated by drugs of whatever nature, or any animals.
Again I would reiterate that this is used to protect local residents' interests where properties are vulnerable to vandalism, theft, arson, etc.

As a small rural authority which does not serve notice very often, even we have used this notice to gain entry to vandalised property and secure it against antisocial behaviour, so the answer to your question is an emphatic "Yes", it is used and is very useful too.
Thanks
Penny Marsh, Horsham DC

Here in St Helens, I have asked our Building Control Section for their views on this and they have confirmed that they regularly use this power and if it was to be repealed they feel it would be necessary to provide other similar legal powers to enable them to perform their duties properly.
I regularly refer empty properties to them that do need securing.
Hope this helps
Ian

Although at Tameside we havent needed to use this recently it has been used in the past and I agree that an alternative piece of legisltaion would need to be created or amended to allow LAs to continue our EP work.  It is a very useful tool in the toolbox