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Planning Circular 10/2009: Planning Enforcement




1. Section 33A of the 1997 Act (introduced by section 9 of the 2006 Act) gives planning authorities the power to issue a notice requiring a retrospective planning application to be submitted. Section 33A has effect from 3 August 2009.

Notice requiring application for planning permission for development already carried out

2. Prior to 3 August 2009, where a planning authority determined that development had taken place without planning permission, but that permission if applied for would have been granted (or, where appropriate, granted subject to conditions to make the development acceptable), they could invite a person to submit a retrospective application. However, there was no obligation on the person to do so.

3. The intention in introducing this notice is to encourage the submission of a retrospective planning application, which would then allow the planning authority to consider the grant of planning permission subject to any conditions or limitations that would make the development acceptable in planning terms. It should be noted that the retrospective planning application would be determined in the same manner as a planning application submitted by the developer in the normal manner and would require to be accompanied by the relevant fee.

4. Before issuing a notice under section 33A the planning authority should, as with any enforcement action consider whether the action is commensurate to the breach. There would be no purpose in issuing such a notice where the planning authority were of the view that permission would clearly not be granted.

5. The notice must;

  • Describe the development in a way that is sufficient to identify it;
  • Specify a date by which the application is to be made; and,
  • Set out the terms of section 123(1) stating that carrying out development without the required permission constitutes a breach of planning control.

6. Planning authorities may determine the method used to describe the development (map, written description, etc) and indeed may use different methods in individual cases, however they must be satisfied that the description clearly identifies the development. This may be important if, in the event of no application being submitted, further enforcement action has to be considered.

7. In setting a date by which the application is to be made, the PA should consider the scale of the development and allow a reasonable period for plans to be prepared, etc. Clearly some applications will be more straightforward than others and this should be reflected in the period allowed.

8. When a notice under section 33A is issued it must, as with other formal enforcement action, be recorded in the planning authority's register of notices maintained under section 147. The information to be recorded is set out in the Town and Country Planning (Enforcement of Control) (No.2) (Scotland) Regulations 1992, as amended by the Town and Country Planning (Miscellaneous Amendments) (Scotland) Regulations 2009.

If a planning application is not submitted

9. Where a planning application is not submitted to the planning authority by the date specified, the planning authority should consider further enforcement action. Such further action should be considered particularly if the planning authority were of the view that a retrospective application would have been granted only if it were subject to conditions or limitations. In such cases it may be appropriate to issue an enforcement notice imposing restrictions on the use of the land or on activities carried out on the land.

10. Whether or not further action is taken, and regardless of the specific action (if any) taken, the issue of the notice requiring the retrospective planning application constitutes taking enforcement action. This is of particular relevance should a person subsequently seek a certificate of lawful use or development in respect of the development, or where a PA considers further action necessary outwith the normal time restrictions on enforcement (as previously set out in Annex A, paragraph 15).