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Planning Circular 10/2009: Planning Enforcement

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ANNEX J
BREACH OF CONDITION NOTICES

Provisions

1. Section 145 of the 1997 Act makes provision for enforcing the conditions to which any planning permission is subject. For the purposes of Section 145, the reference to conditions includes those limitations which are statutorily imposed by certain of the provisions for permitted development rights in the GPDO.

Purpose Of A Breach Of Condition Notice

2. A breach of condition notice ( BCN) may be used as an alternative to (or, if considered necessary, in conjunction with) an enforcement notice, where action is required to remedy a breach of planning control consisting of a failure to comply with any condition.

3. It is important that any conditions imposed on a planning permission should reflect the current guidance on the use of conditions (see SODD Circular 4/1998), particularly with regard to clarity and precision. Applicants for planning permission have the right to appeal to the Scottish Ministers against any conditions at the time they are imposed. They may also apply at a later stage to have the conditions varied, although they should adhere to the original conditions until such time as their application is approved.

Deciding To Serve A Breach of Condition Notice

4. Enforcement action should always be commensurate with the breach of planning control to which it relates and the decisive issue for the planning authority should be whether public amenity or the use of land and buildings meriting protection in the public interest is unacceptably affected. As a planning condition should only have been imposed out of necessity, it is likely that a failure to comply with it will be damaging and justify enforcement action. However, circumstances may have changed since the original condition was imposed and the planning authority will need to assess the current situation.

5. A BCN may normally only be served within 10 years of the breach of planning control to which it relates having occurred (paragraph 12, Annex A). However, these immunity provisions are qualified by section 124(4) of the 1997 Act which provides that, even when the standard time limits have expired, a BCN may still be served if:

  • an enforcement notice relating to the same breach is in effect; or
  • in the preceding 4 years, the planning authority have taken or purported to take enforcement action in respect of that breach.

When deciding whether to serve a BCN, the planning authority should first make certain that the condition in question is both valid and enforceable. This should help to avoid protracted litigation and ensure that this procedure operates, as intended, as a swift and simple means of securing compliance with planning conditions and limitations.

6. The planning authority will also need to consider whether it would be more appropriate, in the particular circumstances of any case, to issue an enforcement notice instead of, or in addition to, a BCN. For example, where it is necessary to secure immediate compliance with a condition, an enforcement notice may enable a stop notice to be served, in appropriate circumstances. Moreover, an enforcement notice enables the planning authority to take direct action under section 136 if the recipient of the notice fails to comply with its requirements.

Serving A Breach Of Condition Notice

7. Where any condition is not complied with, the planning authority may serve a BCN requiring the person on whom it is served to secure compliance with the conditions which it specifies. Those on whom a notice may be served are:

  • any person who is carrying out or has carried out the subject development;
  • or any person having control of the land (as long as the conditions specified in the notice relate only to the regulation of the use of land).

8. For example, where a developer has carried out residential development subject to a condition that a landscaping scheme should be completed and that condition has been contravened, it will not be possible to serve a BCN on the individual home owners who now control the land comprising the curtilage of each residence. As a landscaping condition does not regulate the use of the land, the notice can only be used against the original developer. (However, this does not mean that enforcement action can only be taken against the original developer when this type of breach of condition occurs: it may be possible to remedy the breach by serving an enforcement notice on those persons having control of the land provided that the relevant time limit has not expired).

9. Because recipients of a BCN are responsible for securing compliance with the conditions specified in it and they have no right of appeal, the planning authority should take all reasonable steps to ensure that notices are served only on appropriate persons. Normally, a notice will have only one recipient. However, when a notice is served on a person who has carried out development but who no longer controls the land (as in the example in paragraph 10 above), it is advisable for the planning authority to take reasonable steps to inform the current owners and occupiers of the action being taken.

Content Of A Breach Of Condition Notice

10. A BCN should specify the planning permission to which it relates and the conditions which have been contravened, in order to establish the reasons for its service. It is helpful for a plan of the land concerned to be appended to the notice.

11. A BCN must specify the steps which the authority requires to be taken, or the activities which they require to cease, for the purpose of securing compliance with the condition(s) specified in the notice. Thus, a notice may be drafted in terms of:

  • positive steps (e.g., requiring a landscaping scheme to be carried out and completed in accordance with the terms of a landscaping condition imposed on a grant of permission); and/or
  • prohibitions (e.g., requiring a restaurant, or take-away food shop, to stop opening to customers outwith the times specified in a planning condition).

12. A BCN must specify the compliance period within which the recipient must comply, or secure compliance, with the condition(s) to which the notice relates. The period allowed for compliance must be at least 28 days from the date of service of the notice. That period may, if required, subsequently be extended by a further notice served by the planning authority on the person responsible.

13. As with an enforcement notice, the planning authority should ensure that the time allowed for compliance is reasonable in relation to the requirements of the notice. An unreasonable compliance period may result in the failure of a subsequent prosecution for non-compliance.

14. A single BCN may be directed at a number of conditions. However, for the purpose of clarity, it may be more satisfactory to serve a separate notice for each contravention (e.g., where the compliance periods for the conditions differ). Planning authorities will need to assess what is necessary for the avoidance of doubt about what is required by the notice.

Registration of a Breach of Condition Notice

15. The provisions of section 147 of the 1997 Act require the planning authority to enter details of each BCN they serve in the register of enforcement action.

Challenging a Breach of Condition Notice

16. There is no right of appeal to the Scottish Ministers against a BCN. However, recipients may make representations to the planning authority if they believe the notice to be unreasonable, although they should be clear that such representations and discussions do not postpone the running of the compliance period. The planning authority has the discretionary power to withdraw a notice, by serving a withdrawal notice on recipients of the original BCN, at anytime (including after the expiry of the compliance period). The withdrawal of a notice does not affect the planning authority's power to serve a further notice.

17. The validity of a notice, or the validity of the planning authority's decision to serve it, may be challenged through judicial review, or by defence submissions in the Sheriff Court in the event of prosecution. It is therefore important that a Breach of Condition Notice should only be served where the planning authority is satisfied that the condition in question:

  • is legally valid;
  • satisfies the criteria for the imposition of conditions stated in Circular 4/1998; and
  • has clearly been breached, on the available evidence.

Non-Compliance with a Breach of Condition Notice

18. Section 145(9) provides that it is an offence for a responsible person (i.e. a recipient of a notice) to be in breach of a BCN. A notice is breached if, at any time after the expiry of the compliance period:

  • any condition specified in the notice has not been complied with; and
  • the specified steps have not been taken, or the specified activities have not ceased.

19. Section 137 provides that, where planning permission is subsequently granted so as to authorise any activity which a BCN specified as being a contravention of a planning condition, or where a condition specified in the notice is discharged, the notice ceases to have effect in so far as it requires anyone to secure compliance with that condition. But section 137(3) also specifically provides that, when a BCN ceases to have effect, wholly or partly, in these circumstances, that does not discharge any person's liability for an offence of previously failing to comply, or not securing compliance, with the notice. In other words, a person can be prosecuted for a contravention of a BCN occurring during any period prior to the date when the subsequent planning permission is granted or the relevant condition is discharged.

Penalties for Contravention

20. The planning authority may issue a fixed penalty notice. The person would then have the option to pay, within 30 days, the fixed penalty, which would indemnify them from prosecution. In determining whether or not to issue a Fixed Penalty, planning authorities should have regard to the nature of the breach of the condition and the impact on local amenity. The penalty payable is £300, reduced to £225 if paid within the first 15 days.

21. Alternatively, a summary prosecution in the Sheriff or District Court may be sought, under section 145(9), for the offence of contravening a Breach of Condition Notice. The maximum penalty on conviction is a fine not exceeding level 3 on the standard scale (currently £1000). In terms of section 136 of the Criminal Procedure (Scotland) Act 1995, prosecutions for such an offence must be brought within 6 months of the date on which the offence was committed. If the offence is a continuing one there is a 6 month time limit which begins to run on the last date when the offence was committed, although in such cases the prosecution can include the whole period of the offence.

22. Section 145(10) provides that an offence may be charged by reference to any day or longer period of time; and a person may be convicted of a second or subsequent offence by reference to any period of time following the preceding conviction.

23. It is a defence for those charged with an offence under Section 145(9) to prove:

  • that they took all reasonable measures to secure compliance with the conditions specified in the notice; or
  • where the notice was served on them as having control of the land, that they no longer had control of it at the date when the offence is alleged to have taken place.