Planning Circular 10/2009: Planning Enforcement

Policy on the use of enforcement powers in planning.

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Purpose Of A Stop Notice

1. Section 140 of the 1997 Act sets out the procedures regarding Stop Notices. Where planning authorities consider it expedient that any 'relevant activity' should cease before the expiry of the compliance period in an enforcement notice, they may serve a stop notice prohibiting the carrying out of that activity on the land to which the enforcement notice relates, or any part of that land. A 'relevant activity' is any activity required by the enforcement notice to cease, and any activity carried out as part of that activity or associated with it.

2. With the exceptions indicated in paragraph 3 below, a stop notice may prohibit any, or all, of the activities which comprise the alleged breach of planning control in the related enforcement notice. The prohibition may be directed at:

  • a use of land which is ancillary, or incidental, to the main use of the land specified in the enforcement notice as a breach of control; or,
  • a particular activity taking place only on part of the land specified in the enforcement notice;
  • an activity which takes place on the land intermittently or seasonally.

3. A stop notice may not prohibit:

  • the use of any building as a dwellinghouse; or
  • the carrying out of any activity which has been carried out (whether continuously or not) for a period of more than 4 years ending with the service of the notice, except for any activity consisting of, or incidental to, building, engineering, mining or other operations or the deposit of refuse or waste materials.

Deciding To Serve A Stop Notice

4. The effect of serving a stop notice will usually be to halt the breach of control, or the specified activity. Planning authorities should therefore ensure that a quick but thorough assessment of the likely consequences of serving a stop notice is available (preferably, when the decision is not delegated to officers, in the form of a report submitted by Planning or Enforcement Officers who are thoroughly familiar with the locality and the detailed operation of the alleged breach of control) to the Committee or officer who will authorise service of the notice. The assessment should examine the foreseeable costs and benefits likely to result from a stop notice.

5. The costs arising from serving a stop notice will usually be confined to the firm, operator or landowner who is thereby prevented from carrying on the activity prohibited by the notice. There may occasionally be some costs to the local economy.

6. The costs to a firm may vary from having to modify a production process, at little or no additional cost (at one extreme), to the complete cessation of a business (at the other), with consequent loss of jobs, failure to complete contracts, or bankruptcy. The effect of prohibiting a particular activity should always be carefully examined. Since a stop notice may be directed at any activity, part of an activity or associated activity specified in the enforcement notice, planning authorities should ensure that a stop notice's requirements prohibit only what is essential to safeguard amenity or public safety in the neighbourhood; or to prevent serious or irreversible harm to the environment in the surrounding area.

7. Before deciding to serve a stop notice, the planning authority should consider, whenever practicable, whether there is any alternative means of production or operation which would overcome the objections to it in an environmentally acceptable way. If an acceptable alternative would require the grant of planning permission, in order to carry it on lawfully, the planning authority should consider issuing a notice under section 33A requiring application for planning permission (see Annex C); and, if possible, in co-ordinating a suitable grant of permission with the service of the stop notice. However, since the purpose of a stop notice is to compel the activities specified in it to cease, any delay should be minimised.

8. The benefits of serving a stop notice will usually be readily apparent as an improvement in amenity in the neighbourhood. Planning authorities should consider how many people are likely to benefit, and how adversely their amenities will be affected if a stop notice is not served (on the assumption that the enforcement notice will eventually take effect on expiry of the compliance period specified in it).

Serving A Stop Notice

9. Once a planning authority has decided to serve a stop notice, it is essential to implement the decision speedily and effectively; action to implement it must have top priority.

10. A stop notice must be issued before the enforcement notice to which it relates takes effect, i.e.: it may be issued at the same time as the enforcement notice or at any time within the 28 days (or, if appropriate, whatever longer period the planning authority may have set) notice period between the enforcement notice being issued and coming into effect (but see paragraph 16 below).

11. A stop notice may be served on any person who appears to have an interest in the land to which the notice relates, or who appears to be engaged in any activity prohibited by the notice. The planning authority must attach as an annex to the stop notice a copy of the related enforcement notice.

12. A stop notice must specify the 'relevant activity' which is required to cease. A stop notice must also specify the date when it is to take effect. Section 140(7) specifies that the effective date must normally not be earlier than 3 days (or later than 28 days) after the date when the notice is served. But, when there are special reasons for specifying an earlier date, a stop notice may take effect before 3 days, or immediately. If the notice is to take effect earlier than 3 days, a statement of reasons must be served with it. For example, it may be considered essential to protect an area of special landscape value, or a conservation area, from operational development (such as buildings, roadways or other hard surfaces) which, if it continued, would be especially harmful. The authority must remember that the stop notice must be issued in conjunction with an enforcement notice.

13. Where there is a need to stop an activity with immediate effect, a planning authority will generally find it more effective to issue a Temporary Stop Notice, as this will allow them to stop the activity from the point at which the temporary stop notice is displayed on the site, allowing time for preparation of a stop notice and enforcement notice and for serving these on individuals.

14. The service of a stop notice should always be recorded immediately in the enforcement register which authorities are required to maintain under section 148.

15. The procedures for service of notices specified in section 271 of the 1997 Act apply to the service of a stop notice. In particular, if the notice is served by postal delivery, the envelope containing it should clearly state that it is an urgent and important communication; and it should be sent by recorded delivery service.

16. Section 140(3) provides that a stop notice may not be served where the related enforcement notice has already taken effect. (Section 128(8) requires the authority to specify the date on which the enforcement notice shall take effect). However, if there is an enforcement appeal to the Scottish Ministers, section 131(3) suspends the effect of the enforcement notice until the appeal against it is finally determined or withdrawn. It follows therefore that, when there is an appeal against the related enforcement notice, the authority may serve a stop notice at any time before the appeal, including any further appeal, under section 239, to the Court of Session, is determined.

Effective Service of a Stop Notice

17. The validity of a stop notice cannot be challenged on the ground that it has not been served on someone who ought to be served with it. Section 140(8) enables the planning authority to serve a stop notice on any person who appears to them to have an interest in the land, or to be engaged in any activity prohibited by the notice. Thus, for example, where the owner of land cannot be contacted, the planning authority may serve the stop notice on anyone who is actually engaged in carrying out works prohibited by the notice. Normal administrative practice should be to trace the owner or occupier of the land and arrange for the stop notice to be served on them also.

18. A stop notice is not invalid because a copy of the related enforcement notice was not served as required by section 127, if it can be shown that the planning authority took all such steps as were reasonably practicable to serve the notice.

Public Notification of Service of a Stop Notice

19. Planning authorities may publicise the fact that a stop notice has been served by displaying a 'site notice' on the land to which the stop notice relates. If a site notice is displayed, it extends the effect of the stop notice to any person contravening it (section 141(3)). Displaying a site notice is complementary to, and does not constitute, serving a stop notice.

20. A site notice must state; the requirements of the stop notice, that the stop notice has been served on a particular person or persons, the date the notice was served, and the consequences under section 144 of contravention of the stop notice.

Challenging a Stop Notice

21. There is no right of appeal to the Scottish Ministers against a stop notice. The merits of the planning authority's decision to serve a stop notice cannot be examined in the course of an appeal to the Scottish Ministers, under section 130, against the related enforcement notice. The validity of a stop notice, and the propriety of the authority's decision to issue a notice, may be challenged by applying to the Court of Session for judicial review, or in proceedings under section 140.

Penalties for Contravention

22. When a site notice has been displayed for a stop notice, it is an immediate offence for anyone to contravene, or to cause or permit the contravention of, the prohibition in a stop notice, once the stop notice takes effect. When a site notice has not been displayed and the stop notice has been served on a person, it is an offence for that person to contravene, or to cause or permit the contravention of, the prohibition in the stop notice.

23. An offence may be charged 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 for such an offence. A person guilty of this offence is liable, on summary conviction, to a fine not exceeding £20,000; or, on conviction on indictment, to an unlimited fine. In determining the amount of any fine to be imposed, the Court may take into account any financial benefit which has been, or may be, gained in consequence of the offence. Therefore, planning authorities should always be ready to make available any known details about the proceeds resulting from, or likely to result from, the offence, so that the Court can take account of them in sentencing the offender.

24. It is a defence for those prosecuted for an offence under section 140 to prove that the stop notice was not served on them and that had no reasonable cause to believe the activity was prohibited. It is important therefore that, when a site notice is displayed, it is displayed prominently, for example at any entrance to the site.

Power to Withdraw a Stop Notice

25. A planning authority may withdraw a stop notice at any time (without prejudice to their power to serve another notice) by giving notification of the withdrawal to everyone who was served with the stop notice. If a site notice was displayed on the land specified in the stop notice, a notice of the withdrawal is to be displayed in place of the site notice.

Cessation of Effect of a Stop Notice

26. A stop notice ceases to have effect when either:

  • The related enforcement notice is withdrawn by the planning authority or is quashed on appeal by the Scottish Ministers;
  • The period the planning authority has allowed for compliance with the related enforcement notice expires (at that point, instead of being an offence to contravene the prohibition in the stop notice, it will become an offence not to comply with the requirements specified by the planning authority in the enforcement notice);
  • Notification is first given of the planning authority's decision to withdraw the stop notice;
  • When an enforcement notice is varied (for example, on appeal to the Scottish Ministers under section 132), so that the alleged breach of planning control no longer includes a particular activity which is prohibited in the related stop notice. The prohibition in the stop notice ceases to have effect in so far as it relates to that particular activity.

Planning Authority Liability for Compensation

27. The circumstances under which planning authorities may be liable to pay compensation are set out in section 143(1)-(4). If, at any time when the stop notice is in force, the activity prohibited by it was a breach of planning control, the planning authority are not liable to pay compensation for any consequent loss or damages (section 143(5)(a)). Moreover, under the provisions of section 143(5)(b), anyone who failed to respond to a planning contravention notice, or other statutory notice requiring information, cannot obtain compensation from the planning authority in respect of any loss or damage which could have been avoided if they had provided the information requested, or had otherwise co-operated with the planning authority when responding to the notice.

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