FIXED PENALTY NOTICES
1. Section 136A provides planning authorities with the power to issue fixed penalty notices as an alternative to prosecution for breaching the terms of an enforcement notice. Section 145A makes similar provision in respect of breaches of breach of condition notices.
Fixed penalty notice issued where enforcement notice or breach of condition notice not complied with.
2. Where a planning authority believes that a person is in breach of an enforcement notice or breach of condition notice, it may issue that person with a fixed penalty notice. They may do so on condition that:
- the notice is served within the six months period immediately following the compliance period stated in the enforcement notice; and
- that no prosecution proceedings have been started in respect of the breach.
3. For planning purposes, a fixed penalty notice is a notice offering a person the opportunity of discharging any liability for prosecution in respect of a breach of an enforcement notice or breach of condition notice, by paying the planning authority a penalty of an amount specified in the notice within 30 days. The 30 day period starts the day the notice is served, but if payment is made within the first 15 days then the amount payable is reduced by 25%. Any penalty paid accrues to the planning authority.
4. No court proceedings can be initiated during the 30 day payment period. If however the penalty is not paid within the 30 day period then it would be open to the planning authority to consider prosecution.
5. There is no requirement on the planning authority to issue a fixed penalty notice in any particular instance, and it is open to the authority to determine to take no action in respect of the breach or to initiate prosecution proceedings. In the case of a breach of the terms of an enforcement notice, the planning authority may consider direct action regardless of whether or not any other action is considered appropriate or taken. In reaching a decision as to whether or not to issue a fixed penalty notice or to take alternative action, planning authorities should apply the principles of planning enforcement that any action should be commensurate to the nature and scale of the breach.
6. Only one fixed penalty notice may be issued in relation to a particular step or activity. An enforcement notice may list several steps to be taken, or activities to be ceased, in order to comply with the notice. As failure to comply with any step or activity is a breach of the notice, it follows that there could be several fixed penalty notices issued, each relating to a different step or activity.
7. Where a fixed penalty notice is issued for a particular breach of an enforcement notice, it is possible that the penalty might be paid but the breach remains uncorrected. By paying the fixed penalty the person discharges any liability for prosecution. Payment of the fixed penalty does not however discharge the requirement to comply with the requirements of the original enforcement notice or breach of condition notice and the planning authority retains the power to take direct action to remedy the breach and recover any costs associated with such work.
8. There is no right of appeal against a fixed penalty notice. It would be open to a person to make representations to the planning authority that the breach to which the notice relates had in fact been corrected and that they should not therefore be required to pay the fixed penalty. There is no formal process for withdrawing a fixed penalty notice, but the planning authority would have discretion not to initiate prosecution proceedings where the notice was unpaid, if it was felt the terms of the original enforcement or breach of condition notice had subsequently been met.
Fixed penalties for breach of enforcement notices: amount of penalty
9. The Town and Country Planning (Amount of Fixed Penalty) (Scotland) Regulations 2009 set out that the penalty for breach of an enforcement notice is to be £2,000.
Fixed penalties for breach of breach of condition notices: amount of penalty
10. The Town and Country Planning (Amount of Fixed Penalty) (Scotland) Regulations 2009 set out that the penalty for breach of a breach of condition notice is to be £300.
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