Working Together
BABERGH DISTRICT COUNCIL
AND
MID SUFFOLK DISTRICT COUNCIL
JOINT LOCAL
PLANNING ENFORCEMENT PLAN
Version 1.0, 16.03.2015
CONTENTS
1.0
INTRODUCTION
2.0
APPROACH – PRINCIPLES AND OBJECTIVES
3.0
RESOURCES
4.0
BREACHES OF PLANNING CONTROL
5.0
HOW TO REPORT A POTENTIAL BREACH OF PLANNING CONTROL
6.0
HOW WE PRIORITISE INVESTIGATIONS INTO ALLEGED BREACHES OF
PLANNING CONTROL
7.0
HOW WE INVESTIGATE ALLEGED BREACHES OF PLANNING CONTROL
8.0
MONITORING CONDITIONS AND AGREEMENTS
9.0
INFORMATION, REPORTING AND PUBLICITY
10.0 WHAT HAPPENS IF SOMEONE COMPLAINS ABOUT YOU?
11.0 GLOSSARY OF ENFORCEMENT TERMINOLOGY
12.0 APPENDIX 1: SCHEDULE OF PRINCIPAL ENFORCEMENT TOOLS AND
POWERS
1.0
INTRODUCTION
Legislative and National Policy Context
1.1
The aim of the planning enforcement function is to discourage unauthorised
development and where planning breaches are evidenced, to take
proportionate action to remedy any harm to amenity, or the built or natural
environment. These aims mirror current government policy for planning
enforcement, which is set out in the National Planning Policy Framework, and
states:
“Effective enforcement is important as a means of maintaining public
confidence in the planning system. Enforcement action is discretionary,
and local planning authorities should act proportionately in responding to
suspected breaches of planning control. Local planning authorities should
consider publishing a local enforcement plan to manage enforcement
proactively, in a way that is appropriate to their area. This should set out
how they will monitor the implementation of planning permissions,
investigate alleged cases of unauthorised development and take action
where it is appropriate to do so”.
1.2
The planning enforcement function works within a legislative framework.
However, there is also policy, guidance and case law which through their
collective interpretation further shape how we operate our enforcement
activities and make decisions. These include, but are not exclusive of the
following:
•
Legislative requirements (e.g. Town and Country Planning Act 1990;
Planning (Listed Buildings and Conservation Areas) Act 1990; Planning
and Compensation Act 1991; Police and Criminal Evidence Act 1984;
and Human Rights Act 1998).
•
National Planning Policy Framework and other government guidance,
material in any planning (enforcement) decisions.
•
The Core Strategy Local Development Framework documents of the
Councils and any other material planning considerations.
•
The Government’s ‘Enforcement Concordat’ which has been adopted by
the Councils and the principles of which are enshrined in the Councils’
‘Corporate Enforcement Statement of Policy’.
1.3
The purpose of the Councils’ Planning Enforcement service is to investigate
alleged breaches of planning control and consider appropriate remedial
action to safeguard and protect the stakeholders and environment of Babergh
and Mid Suffolk in support of the extant planning policies of the Councils.
This Plan makes clear what those undertaking unauthorised development
and those objecting to it should expect from us and explains how we will
prioritise and undertake investigations. In summary, we will place a high
priority on compliance with planning law. However, we also recognise that
many breaches of planning law, although unlawful, do not constitute a
criminal offence (until there is non-compliance with an enforcement notice)
and so we will exercise discretion in taking enforcement action only if it is
considered reasonable and expedient to do so. Each breach will be
considered on its own facts.
1.4
In considering any enforcement action, the decisive issue will be whether the
breach of planning control would unacceptably affect public amenity or the
existing use of land and buildings, or be contrary to the policies of the
Development Plan and National Planning Policy, and therefore merit such
action in the public interest.
1.5
Enforcement action is not to be taken simply because there has been a
breach of planning control; it is not a "punitive" measure. In accordance with
Government guidance, we will not take action in respect of a ‘trivial’ or
‘technical’ breach of planning control which causes no harm. Where there is
harm we will take action to remedy that harm through negotiation and when
necessary, formal action. Where formal action is taken we will set out our
reasons for doing so. Likewise, where we do not intend to take action we will
explain why it is not considered ‘expedient’.
2.0
APPROACH – PRINCIPLES AND OBJECTIVES
Principles
2.1
This Plan is based on the following key principles for enforcement:
•
All legitimate complaints regarding alleged breaches of planning control
will be investigated;
•
Complaints will be prioritised for investigation, dependent on their
gravity, impact upon local amenity and the material planning
considerations involved;
•
Complainants’ identities will be kept confidential unless agreements
have been obtained allowing personal information to be disclosed, or
subsequent court action warrants their evidence being made public.
Complainants will be informed of the progress of investigations and of
eventual outcomes;
•
Enforcement action is discretionary and will only be taken where it is
expedient to remedy environmental harm and when it is in the public
interest; and
•
Enforcement action will be proportionate to the breach and will generally
be held in abeyance whilst valid planning applications or appeals are
determined.
Objectives
2.2
The Councils establish the following objectives for implementing this Plan:
•
To uphold planning law and local planning policy and to ensure that the
credibility of the planning system is not undermined;
•
To ensure that the undesirable effects of unauthorised development are
remedied;
•
To ensure the timely and thorough investigation of complaints;
•
To seek a quick and effective resolution to harmful breaches of planning
control;
•
To strike a measured and appropriate balance between protecting
amenity and other interests of acknowledged importance and enabling
acceptable development to take place, in accordance with the principles
of the National Planning Policy Framework; and
•
To carry out all enforcement duties in accordance with the principles of
the Enforcement Concordat, particularly with respect to openness,
helpfulness, proportionality and consistency.
3.0
RESOURCES
3.1
This Plan has been drawn up with regard to the availability of resources and
the demands on the service.
3.2
The Planning Enforcement team is part of the Councils’ Economy division,
working alongside the Development Management, Heritage and Spatial
Planning Policy teams. The Planning Enforcement team investigates around
400 cases every year across the two districts. The Councils employs 5.6 full
time equivalent Planning Enforcement Officers, supported by one full time
equivalent Administrative and Technical Support Officer. Officers report
directly to the Corporate Manager for Planning Enforcement.
3.3
Due to the complex nature of enforcement and the potential legal implications
it may have, cases can often take many months to fully investigate and
resolve. It is therefore important that a smaller number of investigations are
undertaken thoroughly, as opposed to spreading the service too thinly and as
a result, risk compromising desired outcomes. With this in mind, we aim to
have no more than 200 cases under investigation at any one time at either
authority. This means that on occasions the investigation of some alleged
planning breaches may not get first priority and may be postponed. This
decision will be made in accordance with the priority system set out in
Section 6.0 below.
3.4
There is no ‘out of hours service’ to investigate planning breaches that are
alleged to be taking place, and require investigation, outside of normal
working hours. Notwithstanding the above, officers will make best efforts to
be flexible, according to the requirements of an investigation. The Planning
Enforcement team will also seek support from other Council teams who more
regularly work out of hours, to assist as far as possible.
3.5
The Councils are committed to ensuring that its officers are able to carry out
their work safely and without fear and intimidation. Where appropriate, the
Councils will use legal action and any other means available to prevent or
respond to abuse, harassment or assault on its officers.
4.0
BREACHES OF PLANNING CONTROL
4.1
The Planning Enforcement team will investigate and where expedient,
enforce against any breaches of planning legislation including the Town and
Country Planning Act 1990 (as amended).
4.2
However, before discussing what a breach of planning legislation is, it is
important to understand what a breach
is not. The following is a list of
activities which are commonly mistaken by the public as being breaches:
•
Operating a business from home where the residential use remains the
primary use and there is no significant and adverse impact upon the
amenity of neighbouring residents. For example:
A tradesperson who parks their work vehicle on their driveway at
home or other business vehicles on the public highway would
not require planning permission.
The use of one room in a house by the occupier to carry out a
business with no employees or visitors to the property in relation
to that business use would not require planning permission.
Other cases are investigated to assess, if as a matter of fact and degree
planning permission would be required. For example, an occupier
employing several staff, and receiving a number of customers in relation
to that business use within a number of rooms in a house is likely to
require planning permission.
•
Parking of a caravan within the curtilage of a residential property,
providing it is not lived in.
•
Obstruction of a highway or public right of way, or parking of commercial
vehicles on the highway in residential areas or on grass verges.
•
Land ownership or boundary disputes (these are a civil matter).
•
Adverts which have deemed consent in accordance with the Town and
Country Planning (Control of Advertisement) Regulations 2007 (as
amended).
•
Breaches of restrictions imposed by deeds and covenants (these are a
civil matter).
•
Where development is ‘permitted development’, as defined in the Town
and Country Planning (General Permitted Development) Order 1995
(GPDO), and any subsequent amendments.
•
Activities incidental to the residential use of a dwelling. Hobbies or
activities within the curtilage of a dwelling are likely to be incidental to
the enjoyment of the dwelling and therefore would not require planning
permission. For example, a householder repairing their car on their
property would not require planning permission, but a householder
running a car repair business would probably require planning
permission.
•
Clearing land of undergrowth, bushes and trees provided they are not
protected trees and are not within a conservation area or protected by a
planning condition.
•
Security lighting fixed to existing buildings not regulated by a planning
condition.
Breaches of Planning Legislation
4.3
Building Works, Change of Use or failure to comply with Planning Conditions
Local Planning Authorities are primarily concerned with ‘development’, which
is defined in the Act as either:
•
Operational Development e.g. building or engineering works; or
•
Material Changes of Use, or changing from one use to another e.g.
residential to business.
‘Development’ is
not:
•
works which affect only the interior of the building; or
•
works which do not materially affect the external appearance of the
building;
excluding listed buildings.
If there is no ‘development’ there is no breach of planning control and
no further action is available to the Local Planning Authority under its
planning powers.
4.4
Development needs Planning Permission
There are two main types:
•
Deemed permission granted under the GPDO, known as “Permitted
Development”. Some permissions under the GPDO are subject to
limitations and conditions.
Provided the development falls within the
terms of the GPDO, planning permission is not required from the
Local Planning Authority and there is no further action that we can
take.
•
Express permission (full or outline) granted following the submission of
a planning application to the Local Planning Authority. Conditions need
to be expressly imposed by the Local Planning Authority or Planning
Inspectorate on Appeal.
4.5
In summary, a breach of planning control may result from:
•
Carrying out work either without planning permission or in a way that is
different to that which has been granted planning permission.
•
Carrying out work without compliance with planning conditions attached
to a planning permission, or not in accordance with the limitations and
conditions set out in the GPDO.
•
Changing the use of land or property without planning permission or
without compliance with the limitations and conditions set out in the
GPDO or Town and Country Planning (Use Classes) Order 1987 (as
amended).
Carrying out Unauthorised ‘Development’ is not a criminal offence.
4.6
Cases involving Listed Buildings
Works which affect the reasons why a listed building is listed require Listed
Building Consent. Where works have been carried out without consent a
criminal offence may have been committed. Subject to the extent and nature
of the works, consideration will be given to whether to commence criminal
proceedings and/or serve a Listed Building Enforcement Notice to make sure
that appropriate remedial works are undertaken.
4.7
Advertisements
The Town and Country Planning (Control of Advertisements) (England)
Regulations 2007 allows the display of some classes of advertisements and
signs without the need to get consent from the Local Planning Authority.
Where an advertisement is being displayed without the appropriate consents
it constitutes a criminal offence. Where the advertisement causes serious
harm to ‘amenity’ or public safety we will ask for it to be removed within a
specified period. If the advertisement continues to be displayed after this
time formal prosecution proceedings will be considered.
4.8
Works to trees subject to Tree Preservation Orders or within a Conservation
Area
The Councils make Tree Preservation Orders (TPO) to protect visually
important trees, particularly where they are threatened by development.
Similar protection applies to trees within Conservation Areas. It is a criminal
offence to cut down, top, lop, uproot, wilfully destroy or damage a protected
tree in a manner likely to destroy it, without the Council’s consent. If work is
undertaken without consent we will assess the nature of the works and
whether it is in the public interest to prosecute. If a tree is removed
completely it will also be the duty of the landowner to plant replacement trees
of appropriate size and species in the same location as soon as reasonably
possible.
4.9
Unsightly land or buildings
The condition of certain buildings or land can cause harm to the visual
amenity of an area and we sometimes receive complaints relating to such
matters. Where the condition of land or buildings is causing significant harm
to public amenity, consideration will be given to serving a notice under the
Section 215 of the Town and Country Planning 1990. These powers can only
be used in certain circumstances and not all cases are suitable. If we decide
to serve a notice it will specify measures to improve the appearance of the
land or buildings. If those measures are not taken within a specified time an
offence has been committed.
5.0
HOW TO REPORT A POTENTIAL BREACH OF PLANNING CONTROL
5.1
Anyone who believes that a breach of planning control has occurred can
make a complaint. Our best source of information about suspected breaches
is often from members of the public. The information you provide may be
crucial to our investigation.
5.2
You can report a potential breach by the following means:
•
In person at our offices.
•
By emailing us at:
Babergh District Council:
xxxxx@xxxxxxx.xxx.xx
Mid Suffolk District Council: xxxxxxxxxxxxxxxxxxx@xxxxxxxxxx.xxx.xx
•
By writing to the Planning Enforcement team at either:
Babergh District Council
Mid Suffolk District Council
Corks Lane
131 High Street
Hadleigh
Needham Market
IPSWICH
IPSWICH
IP7 6SJ
IP6 8DL
5.3
You will be asked for, or you should provide the following information with
your complaint:
•
The full address or location of the site where the development/breach is
taking place.
•
The nature of the alleged breach and the planning harm caused.
•
If relevant, give specific examples with dates and times to substantiate
your complaint.
•
The name (if known) and status of the person(s) involved e.g.
owner/tenant/occupier/contractor/worker.
•
The date when activities first began and if they are on-going.
•
If the complaint relates to a change of use, state the previous use of the
site.
•
Your full name, postal address and contact details, including telephone
number
must be included with your complaint and where possible an
email address. Where an email address is provided we will generally
use this to keep you informed of progress.
5.4
To avoid malicious complaints,
anonymous allegations of breaches of
planning control are not normally investigated. You should, however, be
aware that if you give your name, address, or any other details, they will be
treated in the strictest confidence so far as legislation permits.
Anonymous complaints may be accepted at the discretion of the Planning
Enforcement service if the matters raised constitute a criminal offence such
as works to protected trees and listed buildings, or where there is irreparable
and immediate harm to public safety or the natural or built environment.
5.5
The Council will seek to maintain the confidentiality of complainants at all
times. We will not reveal the identity of the complainant, or information which
is likely to reveal the identity of a complainant, to the perpetrator of an alleged
breach. We may be asked to reveal the identity of a complainant under the
Freedom of Information Act 2000 or the Environmental Information
Regulations 2004. However, any decision we make to reveal this information
under the above legislation would need to show that the public interest in
disclosure outweighed the risk in withholding the information. If formal legal
action is taken, the identity of a complainant may be required to be disclosed
during court proceedings.
5.6
The substance of the complaints themselves is not confidential. In some
cases it may be necessary to rely on evidence from complainants in order to
take action and you will need to consider whether you are willing to actively
assist the Council by collecting evidence and potentially acting as a witness
at an appeal or in Court. The investigating officer will explain what may be
required in these cases. Once a breach of control has been confirmed, you
may be asked to make a note of your observations and keep a log of any
relevant activities. It is particularly useful to note times, dates, names,
addresses, telephone numbers and registration details of any vehicles
involved.
5.7
If you also raise your concerns with your local District Councillor or your Town
or Parish Council please advise them of any contact you may have had with
the Planning Enforcement team. Give them the name of the officer who is
dealing with your complaint and the Council’s reference number.
5.8
If you also raise your concerns with your local District Councillor or your Town
or Parish Council before you have contacted the Planning Enforcement team
please make that clear to them. The Town and Parish Councils are not the
responsible authority for taking planning enforcement action, the
responsibility lies with the District Council. Your local District Councillor or
Town or Parish Councillor may be willing to pass on your concerns, but it is
by no means certain that they will do so unless you specifically agree this with
them.
5.9
If a complaint is received from a District Councillor or Town or Parish Council
on your behalf we will respond to them. If they provide us with your contact
details we will update you too. Ultimately, it will be your responsibility to
ensure that your concerns are made known to the Councils’ Planning
Enforcement team. The priority we give to an investigation does not change
because we receive it from a District Councillor or a Town/Parish Council.
6.0
HOW WE PRIORITISE INVESTIGATIONS INTO ALLEGED BREACHES OF
PLANNING CONTROL
6.1
The two Councils receive around 400 complaints of alleged breaches of
planning control every year. Cases reported may or may not require a site
inspection and may be referred to other departments or agencies as
appropriate. Due to the often lengthy and complex nature of planning
investigations and staff resources available, priority will be given to those
cases where the greatest harm is being caused.
6.2
When complaints are first received each case will be assigned a priority
dependent upon the nature of the alleged breach. This initial assessment will
be dependent upon the information provided at the time and the harm that is
identified, such as possible harm to the environment or public and/or planning
significance. It is therefore very important that you tell us what impact the
development is having on you or the environment.
6.3
All cases will be kept under review which could result in the priority assigned
to the investigation changing, for example after an initial site visit has been
carried out and the officer has had the opportunity of assessing the alleged
breach.
6.4
Allegations relating to breaches of planning control will be investigated
thoroughly and will be categorised as follows:
High Priority – Any immediate and irreparable harm to the natural or built
environment, or public safety. For example:
•
Unauthorised demolition, partial demolition or significant alteration of a
building, which it is essential to retain (e.g. a listed building or building
within a Conservation Area) or any other development that causes
irreversible demonstrable harm;
•
Unauthorised works to protected trees covered by a Tree Preservation
Order or in a Conservation Area, or the removal of hedgerows to which
the Hedgerow Regulations apply; or
•
Any unauthorised development/activity/operation, falling within planning
control that presents an immediate and serious danger to the public.
Medium Priority – Any unauthorised development or activity which causes
clear and continuous harm or danger to the public; or the built or natural
environment, including the living conditions of residents; or where there is a
risk of material harm to the environment and/or some harm to residential
amenity. For example:
•
Breaches of conditions precedent, or breach of a condition which results
in serious demonstrable harm to amenity in the neighbourhood;
•
Breaches of conditions to a Listed Building Consent;
•
Dangerous vehicular access arrangements;
•
Where works, or uses, have the potential to cause material long term
damage to the environment; or
•
Developments and uses which are clearly contrary to established
policies.
Low Priority – Breaches of planning control causing limited, or no material
harm to the environment, or the amenity of residents. For example:
•
Unauthorised uses or development, which would be likely to receive
planning permission;
•
The display of unauthorised advertisements outside areas of special
significance and where there are no highway safety implications; or
•
Cases involving a trivial or technical breach of planning control, or
where it is unlikely that there is a breach of control.
7.0
HOW WE INVESTIGATE ALLEGED BREACHES OF PLANNING
CONTROL
7.1
Where an officer has a conflict of interest regarding any particular enquiry, the
matter will be assigned to another officer to investigate.
7.2
We will acknowledge all requests in writing, (by email where we have been
provided with an address) within three working days of receiving it, and we
will provide the name and contact details of the Planning Enforcement Officer
who will be involved.
7.3
When a complaint is received, we will endeavour to visit or seek to make
contact with the person responsible for the activities within the following
timescales:
•
High Priority cases – within 3 working days, although staff will
endeavour to visit the same day where resources allow.
•
Medium Priority cases - within 5 working days.
•
Low Priority cases - within 15 working days.
7.4
We will investigate by looking at records and visiting the site. We may also
need to seek further information from the complainant or the person carrying
out the unauthorised work. Matters relating to works to trees or to listed
buildings may have to be referred to specialist officers.
7.5
Firstly, we have to check to see whether any ‘development’ has occurred as
defined in the legislation and detailed in Paragraph 4.3 above.
If there is no
‘development’ then there is no breach of planning control and no further
action can be taken under the planning legislation and we will therefore
close our file. We will write or contact you to explain this.
7.6
If it is established that there has been ‘development’, the types of questions
which we will ask might include:
•
Is planning permission required?
•
Has permission already been given? (most planning permissions can be
taken up at any time within 3 years from the date permission was
granted and once partially put into action, there is no time limit on final
completion).
•
Is the matter serious enough to warrant action?
•
Where planning permission has not been granted, are the activities
generally acceptable in planning terms?
•
Where the activities or development are undesirable yet controllable by
the Councils’ planning enforcement powers, what is the most
appropriate action to take?
7.7
A similar process will be followed in respect of alleged breaches of planning
control relating to advertisements, works to listed buildings, works to
protected trees, in terms of asking:
•
Is consent required?
•
Has the appropriate consent been obtained?
•
Is the matter serious enough to warrant action?
•
Where consent has not been granted, is further action necessary?
•
Where the activities or development are undesirable yet controllable by
the Councils’ planning enforcement powers, what is the most
appropriate action to take?
Enforcement Decisions
7.8
If there is a breach of planning control, we will consider what action to take.
In deciding whether to take enforcement action, the Councils will have regard
to the relevant Development Plan and to any other material considerations,
including national policies as expressed through the National Planning Policy
Framework and associated guidance.
Planning ‘Expediency’ and ‘Harm’
7.9
Even when it is technically possible to take enforcement action, the Councils
are required first to decide whether such formal action would be 'expedient'.
Formal enforcement action is discretionary and the relevant planning
circumstances of each case must be considered in the first instance.
7.10
The ‘expediency’ test is therefore whether the unauthorised activities are
causing harm having regard to the Development Plan policies and other
material planning considerations. In considering whether it is expedient to
take enforcement action the decisive issue will be whether the breach of
planning control unacceptably affects public amenity, existing land uses and
buildings which merit protection in the public interest or the natural
environment. Any action taken will also be proportionate to the breach of
planning control to which it relates. This approach to enforcement reflects
that set out in the National Planning Policy Framework and associated
guidance.
7.11
Formal action will only be taken where there is significant harm in planning
terms. Harm takes many different forms. It includes the impact on visual or
residential amenity, on highway safety, on the amenity of the public in
general, the occupiers and users of surrounding land and buildings or the
environment in general. Harm may occur through damage to the area’s
historic buildings and environment, for example, unauthorised work to listed
buildings, or if the conditions attached to the consent are not properly
complied with. The demolition of an unlisted building in a Conservation Area
can also cause harm. Harm can also occur even if a development does not
have any of the characteristics outlined previously. If unauthorised
development undermines the policies of our Development Plans, or could set
a precedent which, if repeated, would undermine the policies of the
Development Plans, then planning harm is caused.
7.12
The planning enforcement system operates to protect the public interest,
rather than the interest of particular individuals, and so there are certain
issues that we cannot take into account. For example:
•
loss of value to property;
•
competition with other businesses;
•
rights to a view;
•
trespass; or
•
breaches of covenants.
These are not planning matters and therefore we do not include them in any
assessment of harm.
7.13
In deciding whether or not to pursue enforcement action we will also make an
assessment of what evidence is available to support such action and any
claims that the development in question is immune from enforcement.
7.14
The main issue will be whether, if left un-addressed, the breach of planning
control would unacceptably affect public amenity or the existing use of land
and buildings meriting protection in the public interest. This will involve
Human Rights considerations of both the landowner and those affected by
the unauthorised development. Any action taken will be confined to what is
necessary and proportionate in the circumstances of the case.
7.15
Article 8 and Article 1 of the first protocol to the Convention on Human Rights
state that a person is entitled to the right to respect for private and family life,
and the peaceful enjoyment of his/her property. However, these rights are
qualified in that they must be set against the general interest and the
protection of the rights and freedom of others. In accordance with the Human
Rights Act 1998, if there is any question of enforcement action interfering with
that right then Councils will consider in each case whether the wider impact of
the breach overrules the owner’s right to the peaceful enjoyment of his
property.
7.16
Circumstances may also arise where there are conflicting priorities between
the amenity and environmental aspects of a breach of planning control. In
reaching such a decision we will balance the harm being caused against the
likely success of any formal action, the availability of resources, and other
cases that might be causing a greater level of harm, but whose progress
might be delayed as a result. Due regard will be given to the conflicting
priorities when making decisions on whether or not it is expedient to take
enforcement action.
7.17
In summary, we will only take enforcement action when it is considered
expedient to do so, even if there is a clear breach of planning control:
•
Enforcement action will not be taken if the breach of planning control
does not unacceptably affect public amenity or the existing use of land
and buildings meriting protection in the public interest.
•
Enforcement action will not be instigated solely to overcome a trivial or
technical breach of planning control which causes no significant harm to
amenity in the locality of the site.
In these circumstances we will close the case file and notify everyone who
has been involved in the investigation. We will also, without prejudice to the
outcome, notify the owner that they can make an application to seek
regularisation.
Staged Approach to Enforcement
7.18
We will give those responsible for a breach of planning control the opportunity
to undertake required actions, or attempt to reach a negotiated solution that
suits all parties. Where it proves necessary to resolve a significant breach of
planning control, and in accordance with the with the Councils’ scheme of
delegation, officers will consider whether it is appropriate to issue a statutory
notice, prosecute and/or carry out works in default. The choice of action in
each case will be:
•
No further action - no breach has occurred.
•
Breach is immune from any planning enforcement action, the work or
use is "lawful" (see Paragraphs 7.22 - 7.27 below).
•
Not expedient to take action. It is a trivial or technical breach or there is
no significant harm to amenity or the environment.
•
Regularisation - cessation of use/works, retrospective application,
discharge of conditions.
•
Formal action - enforcement or other formal notice, Simple Caution,
prosecution, Injunction, works in default.
7.19
Where a breach of planning control has been identified, unless circumstances
require immediate action, a staged approach to formal enforcement action will
always be adopted by a combination of the following, as appropriate in each
case:
Step 1
•
Give advice e.g. informal letter.
•
Seek to negotiate, allowing an opportunity for cessation of works/use or
reinstatement of land.
•
Invite a planning application if permission may be forthcoming, non-
material minor amendment or to discharge of conditions.
Step 2
•
Formal letters, written warnings.
•
Issue a Planning Contravention Notice to obtain more information.
•
Request an application for a Lawful Development Certificate, which
requires information from the applicant to establish that the development
is immune from enforcement action.
Step 3
•
Where a breach of planning control has been identified and no action
has been taken to address the breach it will be necessary to consider
formal action in the form of an Enforcement Notice and Stop, or
Temporary Stop Notice. Where formal action is taken then every effort
will be made to explain to the recipients what is required of them, the
consequences of non-compliance and the available rights of appeal.
•
Where an enforcement notice has not been complied with this will
include consideration of prosecution proceedings or direct action.
In High Priority cases, Steps 1 and 2 may be omitted.
Retrospective Planning Applications
7.20
An investigation will first establish whether a planning permission or consent
is required and whether it is likely that a permission or consent would be
granted. Planning legislation specifically allows for retrospective applications
to be made and more often than not, unauthorised developments can be
regularised through a retrospective application. Where necessary the Local
Planning Authority can impose conditions to make the development
acceptable.
7.21
Where it is assessed that it is likely that planning permission would be
granted for the development, the person responsible will normally be invited
to submit a retrospective planning application.
Where a breach has taken place and a retrospective planning application
submitted, this will be treated in the same manner as a prospective planning
application. For matters requiring immediate attention a planning application
should not hold up any urgent action. The Councils may decline to determine
an application in relation to any part of an application on which an
enforcement notice has been served and relates to the identified breach, as
long as the notice is served before the application is received.
Immunity and Lawful Development
7.22
There may also be cases where it will be too late for us to take any further
action. A breach of planning control becomes immune from enforcement
action if no action has been taken within certain time limits set out in the
Town and Country Planning Act, namely:
•
Four years from the substantial completion of operational development
and from the change of use of any building to a single dwelling house,
including use as flats.
•
Ten years for all other breaches (i.e. change of use or breach of
conditions, other than those related to use as a single dwelling house).
In essence if operational development i.e. building works took place more
than 4 years ago or a change of use of land or buildings took place more than
10 years ago, then such development would become ‘lawful’ and immune
form any planning enforcement. The planning merits do not fall to be
considered in such cases.
7.23
The reasons for the time limits are that if a building has been in situ for more
than 4 years without complaint or a use continued for 10 years, then it is
unlikely that such development has resulted in any harm.
7.24
In cases where the development may be immune from planning enforcement
action we will invite an application for a Lawful Development Certificate for an
existing use or operation or activity, including those in breach of a planning
condition. The onus is on the applicant to demonstrate through the
submission of evidence such as sworn statements, photographs, receipts etc.
that the development is lawful. The test is ‘on the balance of probability’. The
planning merits of the case do not fall to be considered.
7.25
Where the person (subject) of an investigation disputes that a breach has or
is taking place, they have the opportunity to apply for a Lawful Development
Certificate to determine the matter.
7.26
Certificates granted for an existing use, operation or activity will set out the
precise nature of the use, operation or activity which is certified as lawful.
The Certificate does not protect against the Local Planning Authority taking
enforcement action if the use ‘materially’ changes without making a planning
application for it. Any significant change from what is specified may result in
some enforcement action against it.
7.27
It is also possible to apply for a Certificate for a proposed use or operation.
This will confirm or otherwise that the development proposed is permissible
without the need to make a planning application for it, for example because
the works would be ‘Permitted Development’. Again the planning merits do
not fall to be considered.
Formal Enforcement Action
7.28
Whilst we will endeavour to overcome any harm caused by unauthorised
development, by negotiation wherever possible, the enforcement system
rapidly loses credibility if unacceptable developments are perpetuated by
prolonged or protracted enforcement discussions. A time limit for concluding
negotiations will therefore normally be set by the investigating officer,
commensurate with the priority accorded to the case.
7.29
Where an informal approach fails, negotiations will 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 (bearing
in mind the statutory time limits for taking enforcement action). We will not
allow prolonged negotiation to delay essential enforcement action and will
use the powers available to us if informal methods have not succeeded, or if
there is a serious breach of planning control.
7.30
In considering formal enforcement action, we will have regard to the particular
circumstances of each case and the degree of harm or potential harm
resulting from the breach of planning control and will use enforcement powers
commensurate with the seriousness of the breach.
7.31
Having decided to pursue formal enforcement action, the following options
are available to us, although not all of these will be suitable in every case:
•
To serve statutory notices (including: Planning Contravention Notices;
Enforcement Notices; Listed Building Enforcement Notices; Stop
Notices; Temporary Stop Notices; Breach of Condition Notices; Untidy
Sites Notices; Hedgerow Retention/Replacement Notices, High Hedges
Remedial Notices);
•
To issue Simple Cautions;
•
To prosecute (including prosecution for: non-compliance with a statutory
notice; unauthorised display of an advertisement; unauthorised works to
a listed building; non-compliance with a requirement to replace a
protected tree or for unauthorised work to a protected tree);
•
To take direct action; or
•
To apply for an Injunction.
Further details of the enforcement tools are given in Appendix 1. In
determining what type of enforcement action to pursue in each case, we will
have regard to our joint ‘Corporate Enforcement Statement of Policy’, as
supplemented by this Plan.
Delegated Decisions
7.32
The authority to serve planning contravention and enforcement notices has
been delegated to Planning Enforcement Officers under the Councils’
Constitution and Scheme of Delegation. Enforcement Notices will only be
served with the prior approval of the Corporate Manager – Planning
Enforcement or the Senior Planning Enforcement Officer. Reasons for these
decisions will be recorded in writing.
7.33
In a similar manner, cases will only be closed with the prior and recorded
approval of the Corporate Manager – Planning Enforcement or the Senior
Planning Enforcement Officer, following recommendation of the case officer,
who will be required to evidence and justify their reasons for doing so.
Appeals against Enforcement Notices
7.34
Appeals may be lodged against enforcement actions to the Secretary of
State. When appeals are lodged, each case will be reassessed having
regard to the grounds of appeal and at that stage account will be taken of the
cost implications.
7.35
In defending enforcement action on appeal and in the courts, it will be
necessary to show that the relevant procedures have been followed and that
national policy on planning and enforcement has been taken into account. It
will however, be expected that on the planning merits that led to the
enforcement action, cases will be defended by the Councils at appeal.
8.0
MONITORING CONDITIONS AND AGREEMENTS
Planning Conditions
8.1
The Councils do not have dedicated officers to monitor compliance with
planning conditions. However, the discharge of conditions will be overseen
by the assigned Development Management Officer as part of a ‘total case
management’ approach. Non-compliance of conditions will only be referred
to the Planning Enforcement team if developers or owners are not responding
to approaches made by the Development Management Officer, or the breach
occurs following the completion of the development and it has been brought
to our attention.
Legal Agreements
8.2
Where obligations are not being met, legal action will be taken if negotiations
or identified dispute procedures do not result in agreement. Where a financial
contribution is not paid then the Councils’ debtor systems will be used to
recover funds owed.
9.0
INFORMATION, REPORTING AND PUBLICITY
Keeping complainants informed
9.1
Planning issues can evoke frustration and it is in everybody’s interest for
matters to be resolved as quickly as possible. However, every case is
potentially different and a timescale target for resolving cases is not an
appropriate tool for monitoring progress. One of the main frustrations of
customers is not being kept informed of what officers are doing, or how the
case is progressing towards a resolution.
9.2
In many cases due to protracted negotiations, inability to access property or
make contact with the parties involved, there is nothing to report. It may
seem in such cases, that no action is being undertaken, but this is not the
case. Complainants will be kept informed as regularly as resources allow.
9.3
At each stage of our investigation we will update the person(s) who have
drawn the matter to our attention. We will provide an initial response to all
cases, other than low priority, with an explanation of our findings within
28 days; low priority may take longer, up
42 days. Thereafter potential
stages of notification may include:
•
After the site inspections to advise of the enforcement officer’s findings
and what the next actions will be;
•
That the investigation stage is complete and the case has been closed.
The reasons for closing the case will be given;
•
If an application is submitted to regularise a breach;
•
That formal action is being considered and a report is being prepared.
Advice is given as to the decision-making process and the timescales
involved;
•
When a decision to take no further action has been made and the case
has been closed. The reasons for closing the case will be given;
•
That an enforcement notice has been served, the content of the notice
and compliance period;
•
If an appeal is lodged; and
•
The outcome of any compliance site inspections following the
enforcement notice taking effect, either with or without appeal.
Recording Alleged Breaches of Planning Control
9.4
The Planning Enforcement team will keep full and up to date records of all
investigations undertaken, to inform and justify any future action, and to
compile evidence as necessary e.g. for prosecutions.
9.5
All complaints and allegations received, subject to the anonymity clarification,
will be recorded onto the Councils’ Enforcement databases. The database
will be updated as necessary during the course of an investigation. When a
breach has occurred this will be recorded on the relevant database and the
information retained.
Repeated Complaints
9.6
Where an alleged breach has been investigated and concluded, any enquiry
relating to the same site, which is not materially different to the previous
allegation or does not raise any new issues, will not be investigated. In
addition, regular unfounded complaints from the same source may be
considered vexatious and not investigated.
Public Register
9.7
Every local planning authority must keep an Enforcement Register. Details of
all Enforcement Notices, Stop Notices and Breach of Condition Notices
issued must be entered in the register. Every entry must be made within
14 days of the occurrence to which it relates. The details required to be
entered are stipulated by the Town and Country Planning (Development
Management Procedure) Order 2010 (as amended). The Register must be
available for inspection by the public at all reasonable hours and indexed to
allow a person to trace any entry by reference to the address of the land to
which the notice relates.
9.8
Further information on the planning enforcement function is provided on the
Councils’ websites and is updated regularly. Copies of all notices served are
available to view on request each Council’s office headquarters.
9.9
Good publicity is important in deterring others from committing serious
planning breaches, and reassuring members of the public of the Councils’
commitment to enforcing against serious breaches in planning regulations.
We will work with appropriate media to publicise the Planning Enforcement
team’s work and positive outcomes, including details of impending court
cases and their outcome.
Comments and Complaints
9.10
The Councils are committed to providing an effective and efficient planning
enforcement service. However, anyone not satisfied with the service should
first discuss any concerns with the Corporate Manager for Planning
Enforcement.
9.11
If still dissatisfied, the Councils have a formal complaints procedure, details of
which can be found on the Councils’ websites. A leaflet can also be provided
on request explaining how to make a complaint. The Councils regularly
monitor complaints received through this procedure.
9.12
If anyone considers that we have not sufficiently investigated an issue, or that
the decision not to initiate enforcement action is not well-founded, they may
also, in certain circumstances, refer the matter to the Local Government
Ombudsman, or apply to the High Court for judicial review. A leaflet
explaining how to complain to the Local Government Ombudsman about
possible Council maladministration is available on request, but it may be
necessary to consult a solicitor about the possibilities of a legal challenge.
Monitoring and Review
9.13
All outstanding cases will be reviewed at three monthly intervals with the
objective of determining whether it is expedient to continue with the
investigation or action. The factors to be taken into account when such
decisions are taken will include:
•
The extent of harm caused to local amenity or acknowledged planning
interests;
•
The impact on Development Plan policy;
•
The existence of other remedial powers; and
•
The threat to the integrity of the development control system.
9.14
This Plan and its standards will be reviewed every 3 years.
10.0 WHAT HAPPENS IF SOMEONE COMPLAINS ABOUT YOU?
10.1
We understand that in many cases a breach of planning control is not
intentional and can be the result of a misunderstanding or a person being
unaware of the planning requirements. Therefore, if you receive a letter from
us or a visit from an enforcement officer, we encourage you to respond
positively and provide the information which we need to resolve the matter.
Don’t delay. It is in the interests of all parties if an identified breach can be
addressed at an early stage.
10.2
The Local Planning Authority has a duty to investigate legitimate complaints
alleging a breach of planning control, even if they prove to be unfounded. If
you are contacted about an alleged breach you are entitled to know what the
allegation is and to have the opportunity to explain your side of the case.
However, we do not disclose the identity of the complainant to you. It may be
that the matter can be resolved quickly if there is no breach. In other cases a
resolution may be negotiated, however this does not mean that you can delay
any response or action. We expect you to respond within the stated
timescales and we will pursue prosecutions for failures to respond to formal
notices.
10.3
We will not allow long drawn out negotiations to hold us back from taking
appropriate action. In many cases, particularly where the works are likely to
be acceptable, we may invite you to submit a retrospective planning
application without prejudice to any decision the Council may take. In cases
where planning permission has been obtained and the deviation from the
approved plans in very minor, you may be entitled to apply for a non-material
minor amendment. In cases where pre-commencement conditions have not
been discharged, you may still be able to apply to discharge the condition or
alternatively you may need to submit a new planning application.
10.4
You should be aware that development which requires, but does not have
planning permission, is unauthorised. If you subsequently wish to sell a
property which has been subject to unauthorised works or a change of use,
you may find the sale is delayed or lost as a result when would-be purchasers
carry out searches. You should also be aware that we usually make
mortgage providers aware of breaches of planning permission and we will
send them a copy of any formal notice or decision about planning
enforcement.
10.5
The Planning Enforcement team will advise the Councils’ Land Charges team
of those sites where formal notices have been served, decisions have been
made and where potential enforcement action remains outstanding.
10.6
You should be aware that Planning Enforcement Officers have legal rights of
entry to land and property in order to investigate alleged breaches of planning
control or compliance with enforcement notices. The enforcement officers will
make themselves known to the landowner/developer when they enter a site.
It is not always appropriate or possible to give advance warning of a site visit,
although generally we will try to do so. In most cases a letter will be sent to
you to alert you to a potential breach of planning control as soon as we are
made aware of it and asking you to contact the officer dealing with the case.
10.7
An enforcement officer's visit may be unaccompanied; you do not have to be
present. If it is necessary to enter your house, (as opposed to just the
garden) you are entitled to 24 hours notice. If you actively prevent an
enforcement officer from entering onto your land we will obtain a warrant to
enter the site. Once we have secured a warrant, any obstruction to access
the site will be considered a criminal offence.
10.8
We will use the information we get from a site visit to help assess the harm
being caused and what further action we may need to take. Allowing the
enforcement officer to make a site visit and take photographs will help to
reduce time delays and any potential inconvenience.
10.9
You may be served with a Planning Contravention Notice or a Requisition for
Information Notice, both of which require information concerning the alleged
development. These notices are used to establish the facts of what has
occurred and the details of those with an interest in the land, so that we may
determine whether a breach has taken place and who is responsible.
10.10 If there is a breach, we will contact you to explain what the breach is and
what needs to be done to resolve it. We will follow the procedures detailed in
Section 7.
10.11 Planning Enforcement Officers will be happy to explain the different notices,
and to help you understand the implications. We will endeavour to advise on
the planning merits or otherwise of a development. However, Planning
Enforcement Officers will not act as your advisor and cannot make decisions
on your behalf. You should consider whether you wish to get your own
independent advice from a qualified planning consultant or another
appropriate property professional. If you cannot afford to employ a consultant
you can contact ‘Planning Aid’, which is a voluntary service offering free
independent, professional advice: www.rtpi.org.uk/planning-aid/.
GLOSSARY OF ENFORCEMENT TERMINOLOGY Amenity This is not defined in legislation, but in planning terms is commonly considered to
refer to the overall quality and character of the area. This is made up of different
factors such as:
•
the types of land uses;
•
the quality of the buildings;
•
the juxtaposition of buildings;
•
the provision of open land or trees; and
•
the inter-relationship between all the different elements in the environment.
For example, an area with well-maintained houses that gives occupants space and
privacy would be said to have better amenity than houses that are overlooked by
their neighbours or are located next to a noisy factory.
Specifically residential amenity may take into consideration privacy – whether there
is overlooking, over and above that which already exists, any overbearing impact or
overshadowing or loss of light. There is no right in planning law to a particular view
and we cannot take into consideration loss of monetary value of a property. Neither
can we take into consideration matters which may be controlled under other
legislation, for example light pollution from security lighting.
Expedient/Not Expedient The Council does not have to take planning enforcement action even if there is a
breach of planning control as enforcement action is discretionary. In deciding
whether or not to take enforcement action we will balance the seriousness of a
breach of planning control, the level of any harm that it causes and the likely
chances of success in pursuing enforcement action against the seriousness of other
enforcement complaints and the available resources. Having weighed up these
factors we will make a decision as to whether we will take action i.e. if it is expedient
to take action.
APPENDIX 1
SCHEDULE OF PRINCIPAL ENFORCEMENT TOOLS AND POWERS
Planning Contravention Notice (PCN)
The power to issue a PCN lies in Section 171C of the Town and Country Planning
Act 1990, as amended. This seeks to establish what is happening on a site and who
is responsible. It is intended to act as an information gathering tool. The notice
requires details and information on an alleged breach of planning control to be
submitted to the Local Planning Authority to clarify whether a breach has occurred.
Failure to respond within 21 days, or submission of false or misleading information
may result in prosecution and a potential fine.
Breach of Condition Notice (BCN)
The power to issue a BCN lies in Section 187A of the Town and Country Planning
Act 1990, as amended. This requires the owner or occupier to comply with any
outstanding requirements of a condition imposed on the grant of planning
permission. A BCN cannot be used in respect of listed buildings, conservation area
control and protected trees. The compliance period is a minimum of 28 days from
date of service of the notice. There is no right of appeal against a notice. Failure to
comply with a BCN is an offence liable to prosecution and a fine of up to £1,000.
Enforcement Notice
The power to issue an enforcement notice lies in Section 172 of the Town and
Country Planning Act 1990, as amended. The Local Planning Authority may issue a
notice where it considers there has been a breach of planning control and it is
expedient to do so i.e. the development is likely to be unacceptable in policy terms,
or could not be made acceptable by the imposition of appropriate planning
conditions. An Enforcement Notice requires rectification of the breach within a
specified timescale and must specify:
•
the land to which the notice relates;
•
the reasons why it is expedient to take such action;
•
the breach of planning control complained of;
•
the steps required to remedy the breach;
•
the date on which the notice comes into effect; and
•
the period for compliance.
There is a right of appeal. An appeal may be made to the Secretary of State before
the notice is due to come into effect, usually not less than 28 days after the date of
issue. An appeal will suspend the notice until the appeal is determined.
Failure to comply with an Enforcement Notice within the time specified is a criminal
offence liable to prosecution, either in the Magistrates’ Court where conviction can
result in a fine of up to £20,000, or in the Crown Court where conviction can lead to
an unlimited fine or even imprisonment.
Listed Building Enforcement Notices are similar to Enforcement Notices, but used
where works have been carried out to a listed building, either without the benefit of
listed building consent or in contravention of a condition of such consent.
Stop Notice
The power to issue a stop notice lies in Section 183 of the Town and Country
Planning Act 1990, as amended. A Stop Notice may be issued to support an
Enforcement Notice. It has the effect of requiring a breach of planning control to
cease. A Stop Notice is only used where the breach of planning control is causing
severe, serious and irreversible harm. The notice usually takes effect after a period
of 3 days and prohibits continuation of any, or all of the activities specified in the
Enforcement Notice. It cannot be used to prohibit the use of any building as a
dwelling house nor require the cessation of any activity which has been carried out
for a period of more than four years prior to the service of the notice. Compensation
may be payable by the Local Planning Authority if the Enforcement Notice to which
the Stop Notice relates is quashed on appeal. Failure to comply with a Stop Notice
is an offence liable to prosecution, either in the Magistrates’ Court where conviction
can result in a fine of up to £20,000, or in the Crown Court where conviction can lead
to an unlimited fine or even imprisonment.
Temporary Stop Notice
The power to issue a Temporary Stop Notice lies in Section 171E – 171H of the
Town and Country Planning Act 1990, as amended. It does not have to be
accompanied by an Enforcement Notice. A Temporary Stop Notice can require the
immediate cessation of a breach of planning control for a period of up to 28 days.
During this 28 day period an Enforcement and Stop Notice can be served. There is
no right of appeal. Failure to comply is an offence subject to prosecution, either in
the Magistrates’ Court where conviction can result in a fine of up to £20,000, or in the
Crown Court where conviction can lead to an unlimited fine or even imprisonment.
Planning Enforcement Order
The Localism Act 2011 introduced the power for Local Planning Authorities to apply
to a Magistrates’ Court for a Planning Enforcement Order. The Local Planning
Authority can apply for a Planning Enforcement Order if it discovers a breach of
planning control that has been concealed from the Authority. If the Order is made by
the Court, the Local Planning Authority then has a further year in which to take
formal action such as serving an Enforcement Notice. A Planning Enforcement
Order is useful in situations where a use or development would become immune
from enforcement action due to the passage of time and where the Local Planning
Authority can prove that the use or development has been deliberately concealed.
Injunction
The power to seek an injunction is conferred by Section 187B of the Town and
Country Planning Act 1990, as amended. Where the Local Planning Authority
considers that a serious actual or intended breach of planning control is likely to take
place it may seek an injunction in the County or High Court. It is not necessary to
have considered or exercised any other enforcement power prior to seeking an
injunction. The granting of an injunction is at the Court’s discretion. The Injunction is
generally sought where an operator continues to ignore an Enforcement or Stop
Notice, or where there are irreversible consequences i.e. the threatened demolition
of a listed building. Failure to comply with an Injunction constitutes a contempt of
court and may lead to imprisonment.
Direct Action
The power for a local planning authority to take direct action to address non-
compliance with an Enforcement Notice lies in Section 178 of the Town and Country
Planning Act 1990, as amended. If any steps which are required by an enforcement
notice to be taken (other than the discontinuance of a use of land), have not been
taken within the compliance period, the Local Planning Authority may enter the land
and take those steps; and recover from the person who is the owner of the land any
expenses reasonably incurred by them in doing so.
Section 215 Notice
Under Section 215 of the Town and Country Planning Act 1990, as amended, a
Local Planning Authority can serve a ‘215 Notice’. This can require land to be
cleared and tidied up when its condition adversely affects the amenity of the area.
The notice must specify clearly and precisely what needs to be done to remedy the
condition of the land and state a period of time within which the works shall be
completed. Appeals are made to the Magistrates’ Court. Failure to comply is an
offence subject to prosecution and a fine of up to £1,000 or daily penalties if the
nuisance persists. The Local Planning Authority may resort to direct action and seek
to recover the costs of remedial works from the land owner. This may be done by
registering a charge on the land at HM Land Registry, so that costs are recovered
when the property is sold.
Unauthorised Advertisements
Advertisements which are displayed in breach of the Town and Country Planning
(Control of Advertisements) Regulations 2007 constitute an offence and render those
responsible and the owner of the land liable to immediate prosecution and a potential
fine.
Where an advertisement is displayed with deemed consent under the Regulations,
the Local Planning Authority can require its removal by issuing a Discontinuance
Notice. Such a notice can only be issued to remedy a substantial injury to an
amenity in the locality or a danger to members of the public. This requirement is
more stringent than the normal power to control advertisements.
Simple Cautions
A Simple Caution may be offered as an alternative to prosecution when there is an
admission. A Simple Caution may be offered if the offence is:
•
the first;
•
of a minor or technical nature, or;
•
not sufficiently serious to proceed to court;
but in every instance where the case could be proved in court.
Prosecution
Decisions to prosecute will be made in accordance with the Councils’ ‘Corporate
Enforcement Statement of Policy’ in force at the time. The Councils’ legal advisors
will be consulted on the quality and adequacy of evidence and other legal issues that
might be raised.
We can commence court proceedings where a formal notice has been breached. In
some instances we can also commence legal proceedings for unauthorised works
without the need to have first serve an enforcement notice e.g. unauthorised works
to a listed building or a protected tree or an unauthorised advertisement. Various
fines apply currently:
•
Cutting down, uprooting or wilfully destroying a protected tree £20,000 or
other works: £2,500.
•
Display of an advertisement in contravention of advertisement regulations:
£1,000, with a further fine of £1,000 a day for continuation of the offence.
In deciding whether to prosecute, the Code for Crown Prosecutors will be applied.
The Code is a public document issued by the Director of Public Prosecutions which
sets out general principles to follow when deciding whether or not to prosecute.
We will apply two tests in cases where a prosecution appears likely, in consultation
with our legal advisors:
The
evidential test: is there admissible and reliable evidence that the offence has
been committed, and that there is a reasonable prospect of conviction?
The
public interest test: is a prosecution in the public interest?
As a general rule, prosecutions will not be instituted without due warning.
Rights of Entry
Section 11 of the Planning and Compensation Act 1991 introduced sections 196A
and 196C into the Town and Country Planning Act 1990 relating to powers to enter
land for planning enforcement purposes.
Section 196A (1) states that:
“any person duly authorised in writing by a local planning authority may at any
reasonable hour enter any land (except a dwelling house where 24 hours notice of
intended entry must be given to the occupier) … to determine whether there is or has
been a breach of planning control”.
Any person authorised to enter land in pursuance of such a right of entry or under
warrant is required to produce evidence of such authority and also state the purpose
of entry, if requested, under Section 196C (1) (a) of the Act before entering. It is an
offence to wilfully obstruct entry where the correct procedures have been followed.
Sections 324 and 325 give more general rights of entry for planning purposes. Other
corresponding legislation enables similar rights of entry in connection with Listed
Buildings, trees and hedgerows, advertisements and Hazardous Substances
matters, together with various powers within the Local Government (Miscellaneous
Provisions) Act.
All Planning Enforcement Officers carry identity cards bearing their name, post title
and photograph and a Form of Authorisation permitting them to enter land for the
purposes of investigating planning enforcement complaints. Councillors do not have
rights of entry. Discussions on site between Members and parties to a planning
enforcement issue are not encouraged under the Councils’ planning procedures and
Code of Practice. It is appropriate for Members to enter land and/or buildings by
prior invitation at a formal site visit duly authorised by the Planning/Development
Control Committees.
