Planning Advice Note PAN 54
1. Planning enforcement is a key part of the trinity of development plans, development control and enforcement which make up the statutory planning process. The legislative framework for the enforcement of planning decisions was comprehensively reviewed following the 1989 report by Robert Carnwath QC, Enforcing Planning Control. The new enforcement provisions arising out of that report were set out in the Planning and Compensation Act 1991. These were introduced on a staged basis, in March and September 1992, with detailed guidance on their implementation set out in Scottish Office Environment Department Circulars 8/1992 and 36/1992, now superseded by The Scottish Office Development Department Circular 4/1999.
2. In 1996 the Scottish Office commissioned research to evaluate that policy and related legislative provisions, to determine whether the broad objectives of the Planning and Compensation Act 1991 in respect of enforcement were being met. That research was based on a comprehensive survey of Planning Authorities and discussions with Crown Office. The report by School of Planning and Housing Edinburgh College of Art/Heriot Watt University and Brodies WS "Review of Planning Enforcement" has now been published and is available from HMSO (ISBN 0 748 66091 7) . One of the recommendations arising from it was that The Scottish Office should produce "best practice advice" and that is the purpose of this Planning Advice Note.
3. The aim of this planning advice note is to provide advice on the range of powers available to planning authorities within the current legislative framework. This advice will be relevant in:
- the framing of enforcement policy;
- investigating allegations of unauthorised development;
- considering whether to take enforcement action and using enforcement notices;
- considering whether to issue breach of condition notices;
- considering whether to use Direct Action or Interdict; and
- deciding whether to prosecute.
4. The advice in this PAN is based on that research especially the information on best practice provided by planning officers in the course of responses to the survey, further discussions between Scottish Office Development Department and Planning Authorities and model forms of notices previously published in Circulars 8/1992 and 36/1992.
5. The Town and Country Planning (General Permitted Development) (Scotland) Order 1992 grants planning permission for specified classes of development, thereby avoiding the need for a planning application in those cases. Any other class of development is likely to require an application for planning permission. Carrying out development without the required planning permission, or failing to comply with any condition or limitation subject to which planning permission has been granted, constitutes a breach of planning control. The planning authority has discretionary powers to take action against such breaches having regard to the provisions of the development plan and any other material considerations. However, a breach of planning control becomes immune from enforcement action if no action has been taken within the time limits set out in the Act. Once immune from enforcement action, a breach of planning control becomes lawful development.
6. The substantially improved powers to enforce planning control enhanced those contained in Part V of the Town and Country Planning (Scotland) Act 1972 and are now consolidated into the Town and Country Planning (Scotland) Act 1997 (Part VI, Sections 123-158 refer). All future references to legislation in this PAN will be to the consolidated Act. The explanation of those provisions was contained in Circulars 8/1992 and 36/1992 and with the consolidation of legislation into the 1997 Act those Circulars are also consolidated in The Scottish Office Development Department Circular 4/1999. However, the Town and Country Planning (Enforcement of Control)(No 2)(Scotland) Regulations 1992 remains the relevant Statutory Instrument. (For enforcement action in respect of listed buildings the relevant legislation is the Planning(Listed Buildings and Conservation Areas)(Scotland) Act 1997.)
7. The improved powers are:
- powers of entry onto the land for the planning authority's officer to obtain information required for enforcement purposes (Sections 156-158).
- the power to serve a Planning Contravention Notice, where it appears to the planning authority that there may have been a breach of planning control, and the planning authority require information about activities on the land, or the nature of the recipients interest in the land (Section 125-126).
- powers to serve an enforcement notice. These provisions are intended to assist planning authorities in the drafting of enforcement notices, so that there is a reduced likelihood of a notice being quashed on appeal or found to be a nullity on the grounds of technical deficiency. This includes the power to withdraw or vary the notice whether or not it has taken effect, or to waive or relax any particular requirement of it (Sections 127-139 of 1997 Act).
- powers to serve a Stop Notice to prohibit the carrying out on enforcement notice land any activity described in the enforcement notice (Sections 140-144).
- the power to serve a Breach of Condition Notice, where the planning authority considers there is a failure to comply with any condition or limitation imposed on a grant of planning permission (Section 145).
- the ability of a planning authority to seek an Interdict to restrain any actual or apprehended breach of planning control (Section 146).
- the use of Direct Action powers enables local authorities to enter enforcement notice land and carry out unfulfilled requirements of the notice (Section 135).
- a Certificate of Lawful Use or Development, replacing the Established Use Certificate as a single, coherent mechanism for establishing the planning status of land, i.e. whether an existing or proposed use or development is lawful for planning purposes (Sections 150-155).
- time limits on enforcement action provide for two time limits within which any enforcement action must be started:
a. four years for unauthorised operational development and change of use to a single dwellinghouse after which it becomes lawful if no enforcement action is taken, beginning with the date on which the operations were substantially completed or the change to a single dwellinghouse occurred;
b. ten years for all other development including change of use (other than to a single dwellinghouse) and breaches of condition, after which they become lawful if no enforcement action is started, beginning with the date on which the breach occurred (Section 124).
- increased penalty provisions for enforcement offences. The maximum summary penalty on conviction of the offence of contravening the requirements of an effective enforcement notice, or the prohibition in a Stop Notice, increased from £2000 to £20,000. There is also a provision for the Court, when sentencing a convicted person for an enforcement notice or Stop Notice offence, to have regard to any financial benefit which has accrued, or appears likely to accrue, in consequence of the offence.
The Role of Planning Enforcement
8. The policy context for the planning system is set out in NPPG1: The Planning System. The planning system operates to regulate development and the use of land in the public interest. Planning procedures and decisions therefore need to command respect. The key objectives of enforcement are twofold:
- to remedy undesirable effects of unauthorised development;
- to bring unauthorised activity under control.
It is essential that planning authorities strive to secure these objectives, otherwise the credibility of the planning system will be undermined.
9. Circular 4/1999 Planning Enforcement sets out the general approach to enforcement in paras. 5-35. That message need not be restated here. However in terms of good practice it is important to emphasise the wider choice of options for taking enforcement action now available to authorities and the need therefore, to assess, in each case, which power (or mix of powers) is best suited to dealing with any particular suspected or actual breach of control to achieve a satisfactory, lasting and cost effective remedy.
10. Para. 6 of the Introduction to Circular 4/1999 sets out issues planning authorities should consider in relation to deciding on enforcement action. Three of these deserve restating in terms of good practice and are to:
- consider whether the breach unacceptably harms public amenity, or the existing use of land and buildings merits protection in the public interest;
- ensure any enforcement action is commensurate with the breach of planning control to which it relates;
- ensure that, should an initial attempt to persuade an owner or occupier of a site to remedy voluntarily the harmful effects of unauthorised development fail, negotiations should not be allowed to hamper or delay whatever formal enforcement action may be required to make the development acceptable on planning grounds, or to compel it to stop.
11. A further point of good practice arising from the Circular is that while it is clearly unsatisfactory that anyone should carry out development requiring planning permission without submitting an application and paying a fee, serving an enforcement notice to regularise development is not necessarily the correct route. Where such development is acceptable, service of a Planning Contravention Notice is intended to encourage submission of a planning application, whereas service of an enforcement notice would not only be considered unreasonable but might also lead to an award of expenses against the authority in the event of an appeal.
12. The new and improved enforcement powers have raised expectations that the enforcement of planning control will be quicker, more certain, and more effective. However effective enforcement requires the harnessing and co-ordination of a variety of skills, including investigative, legal, planning, communication and co-ordinating skills. To utilise these skills fully the planning authority needs to ensure that elected Members, chief officers, and all planning staff, appreciate the value of effective enforcement and that unnecessary delays in dealing with unauthorised development can expose planning authorities to a complaint of maladministration to the local government Ombudsman.
13. Section 25 of the 1997 Act provides that, where, in making any planning determination under the planning acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise. NPPG1 (paragraph 63) stresses the importance of enforcement in upholding planning decisions and safeguarding the public interest in relation to unauthorised development and Section 127(1)(b) of the 1997 Act requires enforcement action to have regard to the provisions of the development plan. The research indicates that generally there is not a plan-led approach to enforcement in Scotland. The enforcement function in most planning authorities remains a lower priority relative to other statutory functions and appears to be contingent on local factors, such as levels of resourcing for enforcement and its organisation, interpretations of powers and their use, and political support. This gives an appearance of the arbitrary application of discretionary powers to enforce planning controls.
14. The inclusion by planning authorities of enforcement policies in the Development Plan acts as a guide to enforcement priorities and practice, and serves as a basis for the effective deployment of the full range of enforcement powers. Setting out clear enforcement policies in the development plan would:
- raise awareness about enforcement as a key component of the planning framework ;
- provide a clear policy basis for the application of discretionary powers ;
- assist a clear, consistent and fair approach to pursuing breaches of planning control ;
- reinforce enforcement as a mechanism for implementing planning policy, as well as planning law ;
- locate planning enforcement activity within the local development and environment context, and ;
- provide a clear indication of the Council's commitment to enforcement;
- help to deter appeals, and enhance cases for prosecution on the basis that enforcement action would be in accordance with the statutory development plan which has been open to public consultation.
15. Given the terms of Section 25 of the 1997 Act, careful wording of enforcement policies in development plans is essential to avoid the implication that some breaches might be acceptable. Similarly, precise wording of policies will reduce the scope for unnecessary challenge during development plan preparation. Following the broad categories of development scenarios as described in paragraphs 8-30 of the Introduction to Circular 4/1999 should help to avoid such difficulties.
The Western Isles Development Control Enforcement Policy ( Annex 1) offers an example of how to avoid such problems as the basis for Local Plan policy.
16. The research found that few planning authorities have approved written procedures for planning enforcement. The evidence from the research shows that those which made the fullest use of their wide range of powers were the most successful in remedying breaches of planning control. It is also clear that where activity can be standardised, savings in time can be made and more effort and resources can be targeted on more difficult cases.
Annex 2 shows the written procedures for enforcement adopted by the former Banff & Buchan District Council.
17. Planning authorities will therefore wish to consider establishing an Enforcement Manual which would set out their written procedures for enforcement, including the following:
- standard procedures and routines for each stage of the enforcement process;
- a checklist to assist enforcement staff at each stage of the process, to include prompts for the proper recording of information about alleged breaches, and guidance on enforcement action appropriate to a particular breach;
- model enforceable planning conditions;
- procedures for monitoring the enforcement of planning conditions and significant planning approvals when they start on site;
- specification of responses to alleged breaches of planning control, to complaints, and keeping complainants informed of enforcement proceedings and outcomes;
- standard pro forma letters and notices;
- standard procedures for the service of notices and any non-statutory action;
- follow-up procedures after the service of a notice (such as strongly-worded follow-up letters after investigating an alleged breach, or after serving an enforcement notice). This would assist in reinforcing the terms of the notice and reduce the need for the Council to consider follow-up action on the expiry of the time period for compliance with the notice;
- procedures for monitoring and assessment;
- liaison procedures with other Council services and external agencies (e.g. Procurator Fiscal)
18. When considering the content of enforcement policies, planning authorities may also wish to refer to the recently published concordat on good enforcement practice. The concordat was drawn up by the Access Business Group, which is a partnership between central and local government and business. It sets out the following principles for fair, practical and consistent enforcement:
- performance will be measured against agreed standards ;
- there will be openness in dealing with business and others ;
- enforcers will be helpful and informative and services will be effectively co-ordinated ;
- complaints procedure will be publicised ;
- enforcement decisions will be taken in a proportionate manner ; and
- enforcement officers will strive for high standards of consistency.
Copies of the concordat have been circulated to local authorities under cover of a joint Scottish Office and COSLA letter dated April 1998.
Investigating Allegations of Unauthorised Development
19. Complaints from members of the public are a primary source of information to planning authorities about possible breaches of planning control. At the outset a thorough investigation of the facts of any allegedly unauthorised development is vital to the effective enforcement of planning control to avoid the risk of under-enforcement (Section 128(13)).
20. At the start of an investigation planning authorities will want to:
- establish the planning history of the relevant land or building as accurately as possible using all available sources of information;
- maintain a complete documentary record of all investigations. Such a record could include photographic evidence,signed and dated by the person taking the photographs, witnessed if possible, and accompanied by a location plan showing the position from which each photograph was taken.
available to planning authorities
21. Planning authorities have two main investigative powers for planning enforcement purposes:
- Section 272 of the Town and Country Planning (Scotland) Act 1997 provides limited powers which enable the authority to obtain information as to interests in land. Two offences may arise from these provisions:
(a) failing to provide information and
(b) furnishing information which is known to be false.
- Section 125 of the Town and Country Planning (Scotland) Act 1997 enables the authority to serve a "planning contravention notice",
22. The Planning Contravention Notice is intended to be the main method by which the planning authority obtain information about allegedly unauthorised development. It supplements the more limited power to require information about interests in land which section 272 of the 1997 Act also makes available to planning authorities. It does not comprise enforcement action but it represents the start of formal action which may ultimately lead to enforcement action. As it is a discretionary power, it need not be served before taking enforcement action. The PCN is another means of obtaining information and will frequently lead to discussion and the avoidance of further enforcement action. If enforcement is required however, the service of a PCN facilitates the accurate serving of subsequent enforcement notices. It can also lead to a retrospective planning application for the alleged unauthorised development (see para. 10).
Serving a Planning Contravention Notice
- Planning authorities may serve a PCN whenever they suspect a breach of planning control has occurred.
- Planning authorities are empowered to serve a PCN on the owner or occupier of the land in question, on a person with any other interest in the land, or on a person who is using the land or carrying out operations on it.
Recipients of the Notice are required to provide information regarding:
- any operations being carried out on the land, any use of the land and any other activities being carried out on the land; and
- any matter relating to the conditions or limitations which apply to any planning permission that has been granted in respect of the land.
- Recipients may be required to provide additional information, including:
- a statement declaring whether the land is subject to any of the activities or uses specified in the notice;
- a statement declaring when any operation, activity or use began ;
- the names and addresses of any other persons who use or have used the land, or who carry out or have carried out any operations or activities on the land;
- information regarding any planning permission for any use or operation, or any reason why such permission is not required;
- a statement declaring the nature of their interest (if any) in the land and the names and addresses of any other persons with an interest in the land.
- the recipient is required to respond within a 21 day deadline
- Offences arising from serving a PCN:
- failure to comply with the notice ; or
- knowingly or recklessly making a false statement in response to a notice.
Annex 3 provides an example of a model Planning Contravention Notice
Certificates of Lawful Use or Development (s)
23. A means of regularising unauthorised development is through a Certificate of Lawful Use or Development (CLUD). Annex D to Scottish Office Development Department Circular 4/1999 describes in detail Certificates of Lawful Use or Development.
- A CLUD is intended as a single, coherent mechanism for establishing the planning status of land, i.e. whether an existing or proposed use is lawful for planning purposes.
- It is intended to remedy deficiencies in the scope and operation of the Established Use Certificate, which it replaced.
- It also provides, a mechanism for obtaining from the planning authority (or the Secretary of State on appeal) a statutory document certifying the lawfulness of existing operational development or use as a single dwellinghouse.
24. Prior to the 1991 Act, although a breach of planning control had become immune from enforcement action it was not regarded as lawful. Now Section 150(2) provides that, for the purposes of the Act, uses of land and operations are lawful at any time if:
- no enforcement action may then be taken in respect of them, whether because they did not involve development or require planning permission, or
- because the time for enforcement action against them has expired and they do not contravene any of the requirements of any enforcement notice then in force.
Section 150(3) makes similar provision in respect of any matter constituting a failure to comply with a condition or limitation subject to which planning permission was granted.
25. The combined effect of these provisions is that the former concept of development, or an activity on land in breach of condition, being "unlawful but immune from enforcement action" ceased to exist with the introduction of the new provisions in the 1991 Act. If the development or activity is immune from enforcement action it is also lawful for planning purposes. This applies whether a Certificate is applied for or not.
Drafting a CLUD
26. A CLUD is particularly valuable to a landowner because its effect is similar to a grant of planning permission . It is therefore vital that the certificate indicates:
- precisely the area of land to which it relates, normally by means of an attached, scaled site plan ; and
- precise details of what use, operations or failure to comply with a condition are found to be lawful, why and when.
Annex 4 provides a Model Application Form for a Section 150 Certificate
Annex 5 provides a Model Application Form for a Section 151 Certificate
An example of a prescribed form for Certificate of Lawful Use or Development is shown at Annex 6
Deciding whether to take enforcement action
27. Taking enforcement action means either:
- the issue of an enforcement notice, or
- the service of a Breach of Condition Notice, or
- applying for an interdict.
28. In terms of section 127-129 of the 1997 Act planning authorities may issue an enforcement notice where it appears to them that there has been a breach of planning control and they consider it expedient for planning policy reasons and having taken account of other material considerations. Before taking enforcement action planning authorities must consider:
- in any case whether it is 'expedient' to take formal enforcement action. The decision is within the planning authority's sole discretion. The authority must have regard to relevant planning policies in their development plan and the particular circumstances of any alleged, or suspected, breach of planning control but the authority's discretion is not 'unfettered'.
- that the decision must not be 'unreasonable' which means that it must not be based on irrational factors; or taken without proper consideration of the relevant facts and planning issues or based on non-planning grounds. For example it would not be reasonable for an authority to seek to remedy a noise-nuisance by issuing an enforcement notice unless there were also relevant planning reasons for requiring the use of the land which is causing unacceptable levels of noise to neighbours to cease or be substantially modified.
29. Many investigations of alleged or suspected breaches of planning control result from neighbours` complaints to the planning authority. It follows that, in deciding whether to take formal enforcement action, the authority must observe decision-making procedures enabling them to satisfy any complainants that whatever decision is eventually taken is well-founded in all respects. Otherwise the complainant would have a good case to complain to the Local Government Ombudsman about alleged maladministration. In other words, where there is evidence of a breach of planning control, there will be maladministration unless the planning authority either solicit an application for planning permission to legitimise the situation, or consider taking enforcement action. In this context, planning authorities will appreciate that it is vital for the authority to maintain a properly documented record of their investigation of each case and of the reasons why they decided to take, or not to take, enforcement action. The decision not to take enforcement action can be challenged by judicial review and it is therefore important to ensure that a decision not to take enforcement action is also well-founded.
Timing of authorisation to issue an Enforcement Notice
30. Another point is worth noting which has resulted in legal challenges and which planning authorities will wish to consider carefully when taking enforcement action. The timing of the authorisation to issue an enforcement notice is important. Since a planning authority is empowered to issue an enforcement notice where it appears to them that there has been a breach of planning control, it is vital that, when authorising the issue of a notice, there is some evidence available to show that the alleged breach has occurred. It will not be appropriate therefore for a planning authority to authorise the issue of an enforcement notice in anticipation of a breach of control. This can cause difficulties when it is unclear whether a new use of land is merely temporary or is intended to be permanent and this applies particularly where 'permitted development' rights are claimed for the new use. Nevertheless a planning authority does not have to be 100% certain that the activity (in the case of an alleged change of use) has actually taken place as it has been established in the courts that the onus is on the recipient of the notice to show that the unauthorised change of use has not taken place, not vice-versa.
Serving an Enforcement Notice
31. For the effective discharge of their enforcement responsibilities, planning authorities will wish to be clear how their enforcement functions are to be carried out and especially that any powers of delegation are clearly set out in writing and understood. The following includes other elements of best practice:
- Planning authorities may issue an enforcement notice where it appears to them that there has been a breach of planning control and they consider it expedient for planning policy reasons.
- 'Issuing' a notice is interpreted as meaning that the planning authority should prepare a properly authorised document and retain it in their records.
- An Enforcement Notice must then be served on the owner and the occupier of the land to which it relates, and any other person with an interest in the land if the authority considers that interest to be materially affected by the notice.
- It is important to ensure that all appropriate people have been served and to ensure that the alleged breach of control is not immune from enforcement, as there are specific grounds of appeal in respect of both these matters.
- It is also vital to ensure an enforcement notice is not vulnerable to legal challenge by ensuring that every notice is properly authorised, i.e. signed and dated by someone authorised to do so and recorded in the planning register.
Drafting an Enforcement Notice
32. Under Section 128 of the 1997 Act and the 1992 Regulations, the notice must specify:
- the matters which appear to the planning authority to constitute a breach of planning control ;
- the planning authority's opinion on which of the two expressions in Section 123(1) of the 1997 Act is the one relating to the alleged breach ;
- the remedial steps which the planning authority require to be taken, or the activities which the planning authority require to cease ;
- the calendar date on which the notice is to take effect ;
- the compliance period within which any required remedial steps are to be taken;
- the planning authority's reasons for issuing the notice ;
- the precise boundaries of the land to which the notice relates ; and
- the rights of appeal to the Secretary of State against the notice and the appeal procedure.
33. An Enforcement Notice may require a wide range of steps to be taken to make a development comply with the terms of a planning permission, or for removing or alleviating an injury to amenity caused by the development. This may include:
- the restoration of land to its condition prior to the unlawful development;
- the demolition of any building or works;
- the discontinuance of the use of any land, or the carrying out of any building or other operations;
- compliance with a planning condition;
All the steps required must be clearly stated since once the notice has been complied with any step or action not stated will nevertheless be deemed to have planning consent.
The utmost care is required in formulating a notice. Clarity and precision in the use of language is essential as the notice may have to provide the foundation for a subsequent criminal prosecution. Planning authorities should be aware that the existence of a right of appeal should not be viewed as a long stop for correcting poorly drafted notices.
34. Under Section 128 of the 1997 Act and the 1992 Regulations the notice must:
- state accurately the matters which appear to the planning authority to constitute the breach of planning control, including whether the breach is an operation, a change of use or a failure to comply with a condition or limitation ; and
- the planning authority's opinion on which of the two expressions in Section 123(1) of the 1997 Act is the one relating to the alleged breach.
35. This is fundamental to the entire enforcement process since it may subsequently have to provide the basis for:
- the service of a stop notice, to reinforce the effect of the enforcement notice; or
- the Secretary of State, or an Inquiry Reporter, to consider any matters arising from a valid appeal; or
- in the event of subsequent non-compliance with an effective enforcement notice, a criminal prosecution by the planning authority for that offence, in which an alleged contravention of the notice's requirements will have to be proved "beyond reasonable doubt".
Unless, therefore, an enforcement notice's allegation is firmly founded, from the outset, on factual information about the suspected breach of control, the planning authority may well experience difficulty at a later stage of enforcement proceedings.
36. It is essential also for the steps required by an enforcement notice to be specified with the utmost precision since, in the event of subsequent appeal proceedings or prosecution for an offence of contravening the notice, any uncertainty about the required steps will tend to defeat the prosecution's (the planning authority's) case. There is, however, no certain method of successfully specifying the required steps in every enforcement notice. They may be quite straightforward or several steps may be required or a series of steps may be required in accordance with different compliance periods in order to achieve satisfactory conditions on the site. Two vital considerations in formulating the required steps are:
- to express them precisely in plain language, so that anyone subsequently required to implement the steps will be left in no doubt about what is required; and
- to ensure that the steps do not go beyond what needs to be required in order to remedy any breach of control or any injury to amenity on the enforcement notice site, to safeguard the planning authority's interest in any subsequent appeal.
37. The date specified on which the notice is to take effect is known as the 'effective' date and must be a calendar date since it is related to the required procedure for serving a copy of the notice on the people with an interest on the land and the requirements for submitting an appeal to the Secretary of State against the notice. A minimum of 28 days is required between the service of a notice and the effective date while an appeal must be made before the effective date.
38. The compliance period for an enforcement notice is a matter of judgement but the planning authority is obliged to consider carefully what the recipient of the enforcement notice will have to do, in practice, to carry out the required remedial steps and consequently, how much time it is reasonable to permit for that purpose. This will clearly depend on the particular circumstances of each case and if the requirements are particularly onerous or the work involved can only be carried out during suitable weather conditions or a particular season, it may be advisable to discuss the matter with the owner or operator of the enforcement notice site, with a view to agreeing on a mutually acceptable compliance period. However, the planning authority will want to ensure that it does not overlook the interest of local residents or other neighbours whose amenity is harmed by the breach of control. Finally staff resources will be required to monitor remedial work and it is in the interests of the authority to keep the compliance period as short as is reasonable.
39. Every enforcement notice issued by a planning authority must specify the reasons why they consider it 'expedient' to issue the notice. The reasoning process is important as a means of explaining to the recipient of any enforcement notice why, in the planning authority's view, enforcement action is justified and why they do not believe that the objections to the development could be overcome with the imposition of conditions. A persuasive statement of reasons may convince the recipient that nothing is likely to be gained from submitting an appeal against the notice but in the event of an appeal the Inquiry Reporter will critically examine the statement of reasons in order to assess the merits of enforcement action on planning grounds. Additionally the statement should correspond closely to any reasoning in a committee report which recommended the issue of an enforcement notice and any changes to the reasons by the committee should be added.
40. The Regulations require an enforcement notice to specify "the precise boundaries of the land to which the notice relates, whether by reference to a plan or otherwise". The best way of defining the boundary of a site is by reference to an Ordnance Survey base map, to a scale of not less than 1/2500. Where there is some doubt about precise boundaries the site should be accurately surveyed before the enforcement notice is finalised. As a boundary is applied to achieve the most appropriate planning unit, it should not be drawn too tightly, for instance, round a caravan which could then be moved to take it out of the ambit of the notice. However, the inclusion of the word "otherwise" in the regulations is taken to mean that where it is impossible to provide a plan showing the precise boundaries, a verbal description of the land to which the enforcement notice relates may suffice, together with the address of the premises.
41. The Regulations require an enforcement notice to be accompanied by an Explanatory Note and planning authorities will be aware that they are responsible for filling in the amount of the fee and indicating the category of development into which the breach falls, in the Explanatory Note. When issuing an enforcement notice, planning authorities may wish to consider attaching to the notice a list of all people on whom it has been served. This would give recipients the opportunity to either remedy the situation together or perhaps lodge one appeal on behalf of all.
An example of a model enforcement notice is at Annex 7.
Response to Enforcement Notice Appeals
42. Planning authorities are required to inform recipients of their right of appeal when serving an enforcement notice. In terms of Section 130 of the 1997 Act any person having an interest in the land or a relevant occupier should appeal to the Secretary of State before the effective date for the commencement of the notice on any of the grounds specified. A major concern is that the submission of a valid enforcement notice appeal suspends the effect of the enforcement notice allowing the alleged breach of control to continue and it is therefore used to buy time for the appellant. Planning authority officers are therefore urged to make prompt responses to requests for information from The Scottish Office Inquiry Reporters Unit (SOIRU). These are as follows:
- when SOIRU receives an appeal the planning authority will be asked for a copy of the notice and a note of every person on whom it was served, and this should be supplied by return. The planning authority may consider advising other recipients of the enforcement notice that an appeal has been lodged ;
- when SOIRU receives the grounds of appeal, these will be sent to the planning authority, who must in their statement respond to each ground indicating in addition if they think a pled ground is inappropriate, within 28 days ;
- the planning authority's statement should also indicate whether they would be prepared to grant planning permission for the alleged unauthorised development to which the notice relates and, if so, what conditions might be imposed. Where consultations and neighbour notification have not been carried out, planning authorities should consider very carefully whether such a planning permission might be granted.
What is a Stop Notice?
43. An enforcement notice appeal effectively suspends the operation of an enforcement notice until the appeal is finally determined, or the notice is withdrawn. The stop notice provisions therefore enable the planning authority to deal effectively with the interim position. The provisions enable the planning authority to serve a stop notice which:
- prohibits the carrying out, on the enforcement notice land, of any activity which is within the scope of the breach of control alleged in the enforcement notice.
- requires any such activity to cease until the date when the compliance period specified in the related enforcement notice expires.
Drafting a Stop Notice
44. The stop notice provisions are legally constructed so that what is prohibited by the notice must derive entirely from the related enforcement notice.
- Planning authorities should therefore consider the scope of any possible stop notice when formulating an enforcement notice.
- A stop notice need not apply to the entire site covered by the enforcement notice but if it is restricted it would be prudent for the planning authority to be sure the activity to be prohibited could not easily be moved to another part of the site.
A stop notice is prohibitory and can only compel an activity to cease, thus, where an enforcement notice alleges a material change of use of land, a stop notice may prohibit an activity which is ancillary or incidental to the change of use even though an enforcement notice itself could not be so directed.
- A stop notice cannot, however, prohibit the use of any building as a dwellinghouse or the carrying out of any activity if the activity has been carried out for a period of more than four years ending with the date of the service of the notice other than any activity consisting of, or incidental to, building, engineering, mining or other operations or the deposit of refuse or waste materials.
An example of a Model Stop Notice is shown at Annex 8
45. There is no right of appeal against a stop notice but it can be legally challenged and it is important to obtain proper authorisation for the service of a stop notice, either from the relevant committee or the Council's officer to whom authority has been delegated. While notices should always be drafted with clarity and precision and the appeal process should never be used as a long stop for correcting drafting deficiencies, the planning authority will nevertheless wish to bear in mind that the absence of a right of appeal makes clear and accurate drafting particularly essential.
Serving a Stop Notice
46. The requirement for service of a stop notice on interested people is less rigorous than for an enforcement notice but it is wise for the planning authority to make thorough enquiry into the identity of the owner, and any other occupier or operator, of the stop notice land so that any subsequent allegation of defective service procedures can be effectively rebutted.
Public notification of a Stop Notice
47. An additional power which can help where there is difficulty in establishing the identity of everyone with an interest in the land is a 'site notice'. It states that a stop notice has been served and anyone contravening it may be prosecuted, gives the date when it takes effect (which is normally not earlier than 3 days after the service of the notice) and indicates the stop notice's requirements.
48. In the event of a contravention of a stop notice, the planning authority may initiate prosecution proceedings which would require it to prove 'beyond reasonable doubt' that the prohibition had been contravened and accordingly the notice must provide for the basis of any such prosecution.
- To emphasise the seriousness of contravening a stop notice the planning authority should always consider prosecution as soon as they have evidence of an offence.
49. Despite the apparent usefulness and importance of the stop notice it appears to be rarely used because of fears of claims for compensation arising out of its use. In practice it would seem that this risk is often exaggerated. Compensation is only payable as specified in Section 143 of the 1997 Act, in short, only if the planning authority lose an appeal against an enforcement notice on legal grounds or withdraw. Even then that liability may be reduced or eliminated if the claimant was required to provide information about an alleged breach through a planning contravention notice and did not do so.
- There is no evidence of frequent or substantial payments of compensation having to be made by planning authorities who serve stop notices which are legally well founded.
Breach of Condition Notices (s)
What is a Breach of Condition Notice?
50. The Carnwath report considered that an enforcement notice could be too slow, cumbersome and uncertain in dealing with breaches of conditions and could not therefore deal with such breaches effectively. Accordingly the Breach of Condition Notice (BCN) was intended to be a summary remedy to enable the conditions to be enforced without the merits of the condition being reopened through the whole process of an enforcement appeal. The BCN was seen as being appropriate in cases of alleged breaches of conditions because the developer has implicitly accepted the conditions by not appealing against them and by implementing the permission. It was anticipated that when used the issues would be clear cut and there was likely to be a need for urgent action.
- Use of the BCN, however, draws attention to the importance of conditions imposed on a planning permission and the need to follow the guidance on the use of conditions as expressed in SODD Circular 4/1998 especially in respect of enforceability, clarity and precision.
When to Use a Breach of Condition Notice
51. A Breach of Condition Notice may be used as an alternative to, or in conjunction with, an enforcement notice. A BCN:
- is considered particularly suitable where a valid planning condition has clearly been breached and the experience of summary prosecution (or threat of it) seems likely to secure compliance with the condition.
- may require positive steps to be taken, or alternatively specify prohibition.
- may only be served within ten years of the breach of planning control to which it relates having occurred.
- It is a disadvantage of the BCN that it has no 'default' power so that even if a contravener has been prosecuted but continues to contravene the planning authority cannot enter the land to carry out any works required by the notice.
Drafting a Breach of Condition Notice
52. There is no right of appeal against a BCN and its effect cannot therefore be suspended by an appeal. As stressed in para. 45 above, the principle of clear and precise drafting of notices applies to all parts of the enforcement process and the presence of a right of appeal should not be seen as an opportunity to correct drafting deficiencies. Nevertheless, this principle is particularly pertinent in the absence of such a right. If it can be shown to be fundamentally defective or the planning authority exceeded its power in serving it, the notice may be quashed by judicial review thus delaying the enforcement process.
53. Section 145 of the 1997 Act requires that a breach of condition notice specifies:
- the condition with which the planning authority considers the recipient has failed to comply;
- the steps which ought to be taken or activities which ought to cease to comply with the specified condition; and
- the period allowed for compliance with the notice.
Since any contravention of a notice is likely to lead to prosecution it is vital to state all the terms of a notice with the utmost clarity and precision.
An example of a Model Breach of Condition Notice is shown at Annex 9
Serving a Breach of Condition Notice
54. The BCN may be served on:
- any person who is carrying out or has carried out the development, or
- any person having control of the land.
55. In the first case it may also include causing or permitting another person to breach a condition. Thus a house owner who instructs a builder to carry out alterations in breach of conditions can also be served with a BCN (Section 145(13b)). In the second case in respect of control of the land a BCN can only be served in relation to conditions regulating the use of land. Thus a development built in contravention of a condition specifying materials and sold to individual householders cannot be the subject of a BCN as the condition does not apply to the use of the land (Section 145(4)). However, a BCN may still be served on the builder who contravened the condition by failing to use the specified materials.
What are Direct Action powers?
56. Section 135 of the 1997 Act provides planning authorities with the 'default' powers to enter enforcement notice land and carry out the unfulfilled requirements of a notice themselves. These powers enable a planning authority to:
- carry out any steps required by an enforcement notice, including
(i) steps to discontinue a use of land, and
(ii) steps for the purpose of making development comply with the terms of any planning permission granted in respect of the land, or
- to remove or alleviate any injury to amenity which has been caused by the development.
It also enables the planning authority to recover any expenses, reasonably incurred in doing so, from the owner of the land. In the interests of the local community, planning authorities will wish to balance carefully the costs of pursuing direct action with the risk of non-payment and/or recovery of the expenses of such action.
- It is an offence for any person to wilfully obstruct a person acting in the exercise of these powers.
57. The following practical matters need to be considered when planning default action:
- exactly what must be done (including any necessary operational development on the land) in order to carry out the required steps in the enforcement notice;
- what is the best time of day to carry out the operation and how long it is likely to take;
- who is best equipped to carry out the operation - the Council's staff or a private contractor;
- whether any special powers of entry are needed;
- what other local authority services need to be involved (social services, housing etc.);
- if goods such as cars, caravans, plant or machinery etc. are to be removed from the land, where they can be stored securely until their owner can retrieve them.
58 . Direct (default) action must be planned, organised and implemented with the utmost care. Planning authorities should consider the following:
- Direct action may well stimulate publicity, which the planning authority may welcome, on the ground that they will be seen to be determined not to tolerate persistent contravention of an enforcement notice.
- The owner or occupier of the site may strongly resent, and possibly try to prevent implementation of, the authority's decision.
- There may even be threats of violence or an anticipated breach of the peace. Where that is expected, the planning authority should always seek the co-operation of the police.
59. Section 146 of the 1997 Act provides a power for planning authorities to apply for an interdict to restrain breaches of planning control. This provision, introduced in 1991 was intended as an addition to the range of powers available to match an enforcement action to the circumstances of a breach of planning control. It was seen as a potentially effective measure to address blatant and persistent breaches of planning control.
60. The power permits a planning authority to seek to restrain or prevent any breach of planning control, whether actual or apprehended, by applying to the civil courts for an interdict.
Applying for Interdict
61. Applications may be made either to the Sheriff Court or the Court of Session. It is for the planning authority to decide when it is appropriate to apply for an interdict. The Court may grant such interdict as it thinks appropriate for the purpose of restraining or preventing the breach, or it may refuse the application.
Interdict vs. Stop Notice
62. Contravention of a Stop Notice is a criminal offence and is therefore subject to prosecution whereas breach of an interdict amounts to contempt of court and is policed by the court itself. It has been argued that for these reasons a breach of planning control is more likely to be remedied. In addition, interdicts can be competent in circumstances where Stop Notices are not. However, Stop Notices can be a very powerful tool for planning authorities particularly as they can be served simultaneously with Enforcement Notices.
prosecuting planning offences
Criminal Court Action
Procurator Fiscal Service
63. In any trial under Scots Law, before a person can be convicted of a criminal offence, there must be corroborated evidence to prove beyond reasonable doubt that (a) an offence was committed and (b) the accused is the person responsible for committing the offence. The Procurator Fiscal service is responsible for the prosecution of crime in Scotland. The Fiscal is an independent public prosecutor, who receives and considers reports of crimes and offences from the police and other agencies, including planning authorities) and decides whether or not to take criminal proceedings. The Procurator Fiscal will decide, on the basis of the available evidence in the submitted statements, if a prosecution is in the public interest.
Planning authorities are advised to refer to the Crown Office guidelines entitled "Reports to the Procurator Fiscal - A Guide for Non-Police Reporting Agencies" issued to local authorities on 1 February 1997.
64. Section 136 of the Criminal Procedure (Scotland) Act 1995 provides that in relation to any offence triable only summarily and consisting of a contravention of any enactment, unless the enactment fixes a different time bar proceedings require to be commenced within 6 months. As any report to the Procurator Fiscal must be submitted well before the expiry of the six-month time bar for the case to be fully considered it is clearly important that specified time limits are observed. In cases under town and country planning legislation, the process of negotiation does not always sit well with the process of criminal prosecution and can cause problems with time bar and collecting and preserving evidence.
Using all powers available
65. The research report the Review of Planning Enforcement revealed in its analysis of case studies fairly general criticisms of Fiscals by planning staff questioned concerning an apparent reluctance by Fiscals' offices to pursue planning prosecutions. The report concluded that there was a general perception among planning authorities that prosecution is the ultimate sanction in planning enforcement, rather than the 'last resort' after all other enforcement powers have been exhausted or their use rejected as being inappropriate. In this, it appears that planning authorities are turning to the prosecution service prematurely, i.e. before they have made full and effective use of their own enforcement powers. The reluctance to use the powers available despite their reported effectiveness from those authorities that have used them provides possible evidence of this.
When to use court action
66. There is a wide range of powers available for planning enforcement and the extra time taken to pursue prosecution and the additional burden of proof beyond reasonable doubt in prosecution cases means that it should be an action of last resort. However, where planning authorities have identified that an offence has been committed, the evidence suggests that effective communication and working relationships between planning authorities and Fiscals' Offices is the key to achieving consistency and effectiveness in prosecution. Nevertheless there is also evidence that it is likely that Fiscals will be more willing to prosecute cases if all other possible avenues of action have been explored first. It is clear that if planning authorities have a strong enough case that would withstand the burden of proof for a prosecution they would also have a case strong enough for direct action, Stop Notice, etc., without risk of losing a claim for compensation.
Efficient and Effective Organisation of Planning Enforcement
Enforcement and resources
67. Planning enforcement is the most technically complex component of the development control regime as the flow chart of the process in Annex 10 demonstrates. To be effective, it requires whole-hearted co-operation between people with experience in a range of professional and investigative disciplines at each successive stage of the enforcement process. That process can be prolonged and make unforeseen demands on planning authority's staff and financial resources. To make best use of these sometimes scarce resources the planning authority's enforcement function needs to be efficiently organised with priorities set to ensure enforcement cases can be advanced quickly at every stage. It would seem that many planning authorities still do not have policies, guidelines or procedural rules for planning enforcement and despite the importance of Section 25 of the 1997 Act none appear to have enforcement policies set out in the development plan.
Enforcement Process Flow Chart is shown at Annex 10
68. In order to achieve the required level of proof for criminal actions and to avoid delays and challenges at other stages of the process it is essential that throughout the enforcement process a complete, accurate and up-to-date record of all investigation carried out and assessment of results is maintained.
Case Record Requirements
69. The case record should contain the following information:
- result of formal enforcement action;
- summary of any subsequent monitoring of the site.
70. There is no right or wrong way to organise the enforcement team in an authority but it is important that it should be adequately resourced and team members properly trained. Enforcement is a specialised area and those working in this field require the necessary skills to enable them to approach contraventions of planning control effectively. This requires not only an awareness of the powers available to them but the ability to choose them wisely and apply them appropriately given the facts and the individual(s) involved.
- It is suggested that training should, on occasion, include Fiscals office staff so that a fuller understanding of separate aims and requirements of both planning enforcement and the prosecution service are shared.
71. The Government attaches great importance to effective enforcement as a means of sustaining public confidence in the planning system (NPPG1-paragraph 63). The new and enhanced enforcement powers introduced in 1991 appear to be generally sufficient for their purposes but there is a need for their more effective use by planning authorities and for a more systematic approach to enforcement. Enforcement provisions need to be considered in development plan policies, in the wording of conditions and in clearly specified and fairly applied enforcement procedures. From its wide range of powers a planning authority should be able to fulfil the underlying aims of the enforcement provisions of the 1997 Act by deploying the most appropriate to particular situations and by drawing on the powers appropriate to the circumstances of a particular case. Thus the variety of contraventions and contraveners can be matched by a similar variety of enforcement responses. Accordingly appropriate action can be selected and implemented with the minimum of delay.
72. In conclusion:
- planning enforcement is a key part of the trinity of development plan, development control and enforcement.
- the new powers of planning enforcement have improved the effectiveness of enforcement action.
- the need for procedural rules is paramount to aid rigorous recording of enforcement procedures and information to avoid the risk of legal challenge.
- a full understanding and use of all the powers available and a careful assessment of the best procedure for a given breach before the ultimate last resort of prosecution is attempted is essential.
- if the procedures and the legal requirements are properly followed the danger of claims for compensation for Stop Notices, direct action etc., are overstated and the likelihood of prosecution failing is lessened.
73. Enquiries about the content of this Planning Advice Note should be addressed to Mr George Lyall (0131 244 7530). Further copies and a list of current planning circulars may be obtained from the Scottish Office Development Department, Planning Division, Area 2-H, Victoria Quay, Edinburgh, EH6 6QQ (0131 244 7066 or 7825).
Annex 1: Western Isles policy
DEVELOPMENT CONTROL ENFORCEMENT POLICY (WESTERN ISLES)
Objective To ensure that developments are undertaken in conformity with planning legislation and with any consent conditions applied by the Council.
Scope This policy applies to breaches of planning control:
a) Where a development takes place without having been granted planning consent; and
b) Where a condition under which planning consent has been granted, has not been complied with.
Monitoring To see that the terms of the objective are met, monitoring will be carried out on the following basis:
a) Monitoring for unauthorised development will take place in the course of routine duties by staff in the Environmental Services Department;
b) Developments with planning permission will be inspected as the development proceeds on a risk assessed basis. In other words, those developments which are likely to have the most significant effect on the environment or on a neighbours interest will be inspected most frequently; and
c) Complaints regarding breaches of planning control will be investigated under the Department's Complaints Procedure.
Enforcement Enforcement action will be taken in all cases where:
a) Unsatisfactory unauthorised development has taken place; or
b) The terms of planning conditions imposed on a development
have not been substantially complied with.
The type of enforcement action taken will be in proportion to the
seriousness of the breach.
Action For unauthorised developments and breaches of conditions, the following stages of enforcement action will be taken:
1) A letter will be sent requiring the breach to be regularised within one month;
2) To ensure that formal action is taken against the right person, unless a Notice has already been served, a Request for Information Notice will then be served within seven days. A failure to reply to such a Notice is an offence;
3) If no steps have been taken to regularise the breach, a Breach of Condition Notice or an Enforcement Notice, as appropriate, will be served within seven days of the expiry of the Request for Information Notice;
4) If significant steps have been taken and are under way to regularise the breach, a further period of one month may be allowed for the breach to be regularised before the service of the appropriate notice;
5) The breach shall be inspected within seven days of the expiry of the Breach of Condition Notice or the Enforcement Notice; and
6) If the breach has not been substantially remedied, the matter shall be referred to the Procurator Fiscal.
Urgent Action Where a serious breach requires immediate action, subject to legal advice, an interdict may be used.
Stop Notices (accompanying an Enforcement Notice) will also be used in exceptional circumstances where there is an immediate threat to the health and safety of the general public.
Note Please note that this document is only a policy statement and is not a definitive statement of the Council's legal position on enforcement matters. The Council reserves the right to alter its enforcement policy/policies at any time.
Annex 2: Former Banff and Buchan procedures
A. PROCEDURE FOR DEALING WITH COMPLAINTS
1 Telephone Complaints
1.1 Make sure that it is a planning complaint by asking the complainant appropriate questions designed to establish the nature of the complaint.
1.2 If it is not a planning problem advise them accordingly e.g. Housing complaints to Housing Department, Building Warrant to appropriate Divisional Office, Rubbish Collection to appropriate Environmental Health office, and Legal Complaint to advise to seek advice of solicitor.
1.3 If it is unclear exactly what the problem is and you can't say whether it is a planning issue. Advise them to put their complaint in writing to the Director of Planning and Development so that we can respond, if it turns out to be a planning matter, or pass it on to the appropriate department.
1.4 In the case of a planning complaint and you have no knowledge of an issue at that location ask them to identify the site clearly, state the nature of the problem and arrange to either meet them at their house or to phone back after you have investigated the complaint.
1.5 Ensure that a note is taken of the complaint, the date received, the address and phone number of the person complaining. Log this complaint in the loose leaf enforcement file giving it the next case number.
1.6 First stage is to check the planning records for any background on the site. This can be done in the following ways:
1.6.1 Check the computer for current cases e.g. site address/applicant's name.
1.6.2 Check the record sheets - the record maps of planning applications show the site and have PA/references and EN/references in them.
1.6.3 Get the appropriate planning application files out 5 years are available in original files.
1947-1975 for former Banff County in microfilm.
1970-1975 for former Aberdeen County in microfilm.
From 1975-to 6 years ago for District in Microfilm.
1947-1969 for Aberdeen County available in Basement Store in original files.
1.6.4 Check the DC area files held by the appropriate DC clerkess - these are by local plan areas and contain correspondence and advice about sites.
1.6.5 Depending on the nature of the complaint the information may be held by another department;
e.g. taxi licences - contact Director of Legal Services
caravan licences/waste tips- Director of Environmental Health
1.6.6 Check the Local Plan - this will advise you of the Local Plan Policy Zoning for the area under question and provide yourself with a OS plan of the site (1/2500 scale)
1.6.7 Check with the Planning Assistant responsible for the area to see if any knowledge available, it can be useful to know if the area is a SSSI, Ancient Monument, Area of Planned Landscape or Listed Building.
1.7 When you have the background (NB depending on the complaint the background research may be very basic e.g., extension to dwellinghouse, whereas mineral extraction or waste tipping may require considerable research):-
1.8 Visit the site to establish the facts (NB site visits should be planned to make best use of time e.g. batching and visiting complaints in an area at one time).
1.8.1 Approach the owner/occupier in an upfront manner so they are aware of what you are doing,
1.8.2 don't identify the complainant to the person you are interviewing,
1.8.3 ask for permission to enter the site,
1.8.4 collect the facts,
1.8.5 ask if you can take photographs of this if appropriate,
1.8.6 note down the facts and dates you are told, and
1.8.7 prepare a site plan to show extent of problem.
1.9 At the end of the visit advise the occupant that you will be reporting back to the department. You can also informally advise them of what range of options they have (if it is a planning contravention).
1.9.1 make an application,
1.9.2 stop work and clear the site,
1.9.3 continue until they receive a letter advising them what they should do, or
1.9.4 that you will be advising another department to look at the problem - e.g. Roads Department if a new road access is concerned.
1.10 On return discuss the case with the Planning Assistant and/or the Divisional Officers as appropriate to decide on a course of action.
1.11 Write letters to:
(a) the offending party advising what action they should take,
(b) the complainant - advise that the matter has been investigated and appropriate action taken, and
(c) advise any other body which you consider should know about the situation to keep them informed.
2 Written Complaints
2.1 Log the complaint onto the loose leaf enforcement officers register under the next case number.
2.2 If anonymous - no further action but retain the case on file and file the letter in the appropriate area file,
2. 3 Acknowledge complaint advising of action that will be taken when e.g. investigate and get back to them at a later date as referred to other departments for action.
2.4 If it is not a planning complaint write back advising them of this and giving advice on where to take their problem,
2. 5 If planning complaint check background and proceed as 1. 6 to 1. 11.
3 Verbal Complaints by member of public at office, District Councillor, Member of Staff of Council or another organisation.
3.1 Note the complaint and by reference to record maps identify the exact site in question. Take a note of all parties, names, addresses etc. Assess nature of complaint and if in any doubt if it is a planning matter seek advice from Professional Planners preferably the officer responsible for the area in which the problem is located.
3.2 Advise them that the complaint will be investigated but in their own interests they should put it in writing.
3.3 Make arrangements to meet on site if this is appropriate.
3.4 Advise that they will be contacted after the investigation has been carried out (by phone or by letter as appropriate).
3.5 In the case of Councillors advise them that correspondence on the matter will be copied to them.
3.6 Terminate the meeting by saying that the investigation will proceed as soon as the background to the site has been investigated.
3.7 Proceed as 1.6 to 1.11.
B. PROCEDURE FOR DEALING WITH PLANNING CONTRAVENTION (UNAUTHORISED DEVELOPMENTS OR USES)
1.1 When it is established that there appears to be a development
underway or completed which has been carried out without the benefit of planning permission (In consultation with Planning Officers if necessary) the following options are available as agreed by Planning and Development on 5/6/92.
1.2. In cases where the works which have been carried out
(a) do not affect the amenity or public safety of the area in terms of the Councils Policies.
(b) no other works are required to make them acceptable,
(c) no written planning objections have been received regarding the work.
1.2.1 The owners and occupiers of the site, be advised by letter that without specific planning permission for the works they may be at a disadvantage if they wish to complete the sale of the land or buildings and have no evidence of planning permission having been granted.
1.2.2 They should also be advised that retrospective planning consent should be applied for and as the works are unauthorised the Planning Committee will require to consider the proposal.
1.2.3 This contravention is logged in the Enforcement Register and filed in the appropriate DC area file.
1.3 In cases where it has not been possible to gain sufficient information on developers ongoing or proposed on a site.
1.3.1 A planning contravention notice is served on the owner, occupier and person carrying out the works to supply the information required and submit a planning application (See Annex 3 model planning contravention notice).
1.3.2 An enforcement file is made up and the forward date (21 days from the issuing of the notice) entered.
1.3.3 If the information is submitted within the 21 days. It can then be determined if further enforcement action is necessary or if the works do not require consent.
1.3.4 If no information is submitted within the timescale and the breach is serious the Chairman and Local Member are consulted and with their agreement an enforcement notice is issued.
1.4 In cases where a serious breach has occurred and sufficient information is available to prove that planning permission is required.
1.4.1 An enforcement notice is served. The Chairman and Local Member are consulted and with their agreement an Enforcement Notice is served.
1.5 In cases where planning permission is required and the amenity or public safety of the community are at risk or as a result of the unauthorised operations inexplicable harm is being done to the environment
1.5.1 The Chairman, Local Member and the Director of Legal Services are consulted to determine if a Stop Notice should be served.
1.5.2 On reaching agreement as the Stop Notice is served,
1.5.3 All the above are copied into the Enforcement file.
1.6 That in cases when it has been determined that the unauthorised development:
(a) requires planning permission,
(b) the parties involved have been notified that planning consent is required.
(c) that no valid application has been submitted within 28 days of this notification.
1.6.1 Enforcement action is taken where Delegated or a report is submitted to Committee whichever is most appropriate.
1.7 In the case that the development has been completed for more than 4 years the owner/occupier be asked to submit an application for "Lawful Consent".
C. PROCEDURE FOR PREPARING AND SERVING AN ENFORCEMENT NOTICE
1.1 Ensure that all information is in the Enforcement file relative to the case.
1.2 Copy any parallel cases either within the district or nationally and add to file.
1.3 Visit the site and photograph the current situation.
1.4 Prepare Maps and diagrams as appropriate which indicate the extent of the planning unit boundary and the extent and description of the unauthorised works on site.
1.5 Consider what requires to be done to rectify the breach of Planning Control and assess if this is practicable.
1.6 Define a realistic time scale for the works required by 1.5 and 1.
1.7 Prepare a report for circulation to Director/Chairman/Local Member/Committee/Director of Legal Services as appropriate which contains:
1.7.1 Location plan;
1.7.2 Site plan showing the area subject to Enforcement;
1.7.3 A description of the unauthorised works;
1.7.4 A reporting outlining the works required to rectify the breach and the realistic timescale; and
1.7.5 an index of other information, photographs, statements, site notes etc.
1.8 Send above with memo to Director of Legal Services requesting a meeting with the appropriate members.
1.9 Attend meeting if required and brief members.
1.10 Agree final Enforcement Notice with Director of Legal Services.
1.11 Serve Enforcement Notice.
1.12 Revisit the site and note any compliance or outcome in relation to the enforcement notice.
1.13 If Notice appealed discuss ground of appeal with Director of Legal Services and Planning Officers to determine response.
1.14 Help prepare appeal responses.
1.15 Attend appeal site inspection (if appropriate)
1.16 On decision (if in support of DC) be prepared to monitor site for compliance with decision.
1.17 If not comply with enforcement decision prepare a report for the Fiscal in consultation with Director of Legal Services.
1.18 When case is called prepare evidence in consultation with Director of Legal Services and attend court as witness for District Council.
1.19 Ensure that all copies of correspondence, discussion etc., are passed to clerkess for filing,
1.20 If court case is successful monitor the site to assess if further breaches are taking place and report to fiscal if this is the case.
Annex 3: model planning contravention notice
Annex 4: model application form for Section 150 Certificate
Annex 5: model application form for Section 151 Certificate
Annex 6: prescribed form for certificate of lawful use or development
Annex 7: model enforcement notice
Annex 8: model stop notice
Annex 9: model breach of condition notice