Table of Contents
1
Introduction..
3
2
What you can expect from the Planning Enforcement
Service.
3
3
Definition of unauthorised development.
4
4
The Council’s approach to unauthorised
development.
4
5
Priorities.
5
6
Investigation of suspected breaches of planning control.
6
7
Retrospective planning applications.
10
8
Material and non-material amendments to planning
permissions.
11
9
Monitoring of planning permissions.
11
10
Considerations prior to taking enforcement action..
12
11
Taking formal enforcement action..
14
12
Time limits for taking formal action..
17
13
Failure to comply with formal notices.
18
14
Other Types of Enforcement.
19
15
Complaints about the Planning Enforcement Service.
20
This document sets out the main Planning
Enforcement service areas and explains how the Council carries out
its enforcement activities. In order to provide the best possible
service, the Council must give clear guidance on what it can and
can’t do, and how the demands on our services are balanced
against available resources.
The Council has also published a separate list
of frequently asked questions which cover other matters related to
Planning Enforcement. This can be viewed on our web site at
https://www.spelthorne.gov.uk/article/17706/Planning-enforcement-FAQs
It should also be noted that
the Council has enforcement powers and responsibilities relating to
Building Control and Environmental Health matters, Those are not
detailed in this Enforcement Plan.
·
A proactive and efficient service
for customers seeking advice and information.
·
A full range of available powers
when conducting investigations (including negotiations and
retrospective planning applications) and, where appropriate,
immediate action.
·
Minimising compliance costs by
ensuring that action taken is proportionate to the
risks.
·
Care taken to work with small
businesses and voluntary and community organisations to assist them
in meeting their legal obligations without unnecessary expense,
where practicable.
·
Where appropriate, prosecute
individuals or organisations who fail to comply with any formal
notice served on them.
·
Take direct action having regard to
the degree of harm and public safety.
·
Carry out our duties in a fair,
equitable and consistent manner.
·
Consider each matter on its merits
and ensure a consistent approach to enforcement
resolution.
·
Ensure we follow
principles of consistency and high standards in each and every
case.
·
Provide information and advice on
the rules applied and publish this as widely as
possible.
Planning permission is required for the erection
of many types of buildings and for a material change in use of land
or buildings, and to erect some forms of advertisement. There are
controls to protect Listed Buildings and trees covered by a Tree
Preservation Order. Unauthorised development generally constitutes
the following: -
·
The erection of buildings or a
material change of use without the necessary planning
permission.
·
The carrying out of development at
variance to that given planning permission (and shown on the
approved plans)
·
The carrying out of development not
in accordance with the conditions on the planning
permission.
·
The display of advertisements
without the necessary advertisement consent.
·
Felling of, and works to, trees
included in a Tree Preservation Order, or in a Conservation
Area.
·
Demolition of, and alterations to,
Listed Buildings and certain buildings in Conservation Areas
without the necessary consent.
The purpose of planning enforcement is to
investigate and resolve breaches of planning control and
unauthorised development which cause harm to public amenity and the
environment.
Enforcing against unauthorised development is a
discretionary power and the Council is not legally bound to act.
However, the Council consider it essential, where unauthorised
development occurs which has harmful consequences either to the
environment or to people living nearby or is contrary to planning
policy that swift action is taken to prevent it continuing. The
nature of the harm arising from unauthorised development will be
the primary factor which influences the course of action taken to
deal with an issue. Those cases which cause most harm will be
prioritised.
The Council will respond sympathetically to
those situations where a breach of planning control has genuinely
occurred unintentionally (particularly in relation to household
development) but will take the necessary steps to resolve any harm
arising from the work.
In all, but the most serious of cases, the
Council will first seek to resolve the matter through discussion
with the owner/person carrying out the work and to avoid any
unnecessary formal legal action.
The Council will
generally seek to prosecute those people who have felled or damaged
a preserved tree or demolished or damaged a listed building.
The Council wishes to support activities which
contribute to economic growth and will have regard to the impact of
any enforcement action on businesses. It will ensure that the time
periods for compliance in any Notice are sufficient to minimise
disruption to the business and if possible, avoid any permanent
loss of employment.
To manage resources effectively, all reports of
suspected breaches of planning control will be investigated and
progressed in accordance with the priority rating below. The
priority rating determines the initial response. Dependent on
the outcome of that initial response the priority rating may be
changed. This is not an exhaustive list, and there may be
exceptions.
5.1
Category 1: Serious harm (High Priority)
·
Unauthorised demolition of Listed Buildings, ancient monuments and
locally Listed Buildings.
·
Felling or lopping of a preserved
tree or tree in a Conservation Area.
·
Where development has started and is
subject to planning conditions which are required to be agreed
before commencement (e.g. contamination, archaeology, nature
conservation or trees).
·
Development or breach of conditions
likely to cause serious harm/danger to people or
amenity.
·
Harmful unauthorised development
which is about to become immune from any action being taken against
it because of the passage of time periods set in
legislation.
·
Failure to discharge BNG –
Biodiversity Net Gain pre- commencement conditions.
5.2
Category 2: Significant and widespread harm to local amenity
(Medium Priority)
·
Unauthorised development causing
significant or widespread harm.
·
Breaches of planning conditions
causing serious nuisance to adjoining residents.
·
Breaches that are contrary to well
established planning policies such as Green Belt.
·
Unsightly buildings or untidy land
that is causing serious harm to the amenity
ofneighbours.
5.3
Category 3: Other
·
Breaches of a technical nature and
not in significant conflict with planning policy
·
Breaches which are temporary and
unlikely to result in any long-term harm.
·
Advertisements not included
above.
·
Breaches of other planning
conditions.
·
Other changes of use including HMOs
(which are not permitted development)
·
High hedges.
·
Unauthorised pitching of
caravans.
·
Businesses being operated from
home.
·
Development not in accordance with
the plans during the build process.
Individual cases may be re-prioritised as the
investigation progresses.
To ensure that an adequate overall service is
provided resource allocation will be periodically reviewed. The
quality of evidence and support provided by complainants can also
impact on the outcome of an investigation, and where such support
is likely to increase the chances of a successful outcome, the
matter will be prioritised.
6.1
Making a complaint or an enquiry
To start a
planning enforcement investigation, you can contact us by any of
the following methods: -
·
Completing the standard form on our
web site:
http://www.spelthorne.gov.uk/planningenforcementcomplaintform
·
Email at planningdm@spelthorne.gov.uk
·
By letter to Planning Enforcement,
Spelthorne Borough Council, Council Offices, Knowle Green, Staines
Upon Thames, Surrey, KT18 1XB.
When complaints are received, they are recorded
on our database with a unique reference number so they can be
monitored, and the complainant updated on progress.
So that your enquiry can be processed
efficiently the following information should be provided:
-
·
Name and contact details of
complainant.
·
Full address of the alleged breach
of planning control.
·
Nature of the breach and the harm it
may be causing.
To avoid unnecessary use of resources, anonymous
reports of suspected breaches of planning control will not normally
be pursued unless other evidence suggests that the breach is
causing serious harm to the environment or the amenities of
residents. Confidentiality of a complainant’s identity will
be safeguarded unless it is necessary for the complainant to give
evidence at an appeal.
We will aim to acknowledge receipt of any
complaint within 5 working days and to provide an initial response
on the actions we are taking within 10 working days
After receipt of a complaint initial research
will be carried out, and a site visit may be required to establish
whether or not a breach of planning control has
occurred.
The initial site visit (where necessary) will be
conducted within the following timescales:
·
High priority cases – within
two working days
·
Medium priority cases – within
five working days
·
Low priority cases – within
ten working days
There will be
exceptions to this, particularly in very urgent matters.
These timescales allow officers to carry out
research before visiting a site. If carrying out the initial site
visit within these time frames is problematic on a specific case
the officer will notify the complainant.
On completion of the initial site visit, the
findings will be assessed by the Officer, and a view taken as to
how the investigation will proceed, which may include taking legal
advice.
6.2
Cross Service Enforcement
In the event
of an issue being reported to multiple services, for e.g.
Environmental Health and Planning Enforcement, the other service is
then consulted to determine the most efficient and expedient action
to take to resolve the issue. Usually this will mean after
initial investigation, one service takes the lead and carries out
enforcement action as and when it is expedient to do so. For
example, it may mean that one service has more effective powers in
legislation than the other and so takes the enforcement
lead.
In certain
instances, it is recommended to carry out a joint
investigation. However, resourcing will be taken into
consideration to ensure it is essential and effective.
6.3
Right of Entry
The Planning
Enforcement Officers are authorised to act on the Council’s
behalf and have a right to enter land and buildings without warrant
for the purposes of making inspections, surveys and examinations as
required, pursuant to any statutory planning related powers of the
Council.
Section 196A
and section 324 of The Town and Country Planning Act 1990 and
section 88 of The Planning (Listed Buildings and Conservations
Areas) Act 1990 identify those powers giving rights of
access.
6.4
If no breach of planning control is established
A significant number of investigations are
closed as there is no breach of planning control established. For
example:
·
There is no evidence to substantiate
the allegation.
·
Development has taken place but
planning permission is not required (usually because it is
permitted development)
·
Planning permission has been granted
or an application is in progress.
Where this is the case, the complainant will be
notified that no further action will be taken, either verbally or
in writing, within 10 working days of the initial site
visit
6.5
Where further investigation is required
There are cases where the initial site visit
does not provide sufficient evidence to prove whether a breach of
planning control has taken place such as business operating from
home and breaches of hours conditions, and further investigation is
required. In these cases, the complainant will be notified within
10 working days of the initial site visit that further
investigation is required If they are unwilling to help, it may not
be possible to take further action due to insufficient
evidence.
A Planning Contravention Notice can be served to
obtain information relating to the suspected breach, which can take
time.
A person on whom notice is served has 21 days to
respond. Therefore, it may be several weeks until the appropriate
evidence can be collected.
6.6
Where there is a breach of planning control
When a complaint is received the case officer
will check to see if there is a breach of planning control and that
legislation allows us to take action. Each case is judged on its
individual merits. In some cases, although a breach of planning
control has been identified it is not possible for the Council to
take action because it has been occurring, or in existence, for a
long period of time and is immune from Enforcement
action.
In most cases it is not possible to take action
against buildings and structures which have been erected without
consent if they have been in existence for more than four years.
Similarly, a change of use of a building or land without
permission, or the breach of a planning condition imposed on a
permission, will be immune from enforcement action if it has
occurred for more than 10 years.
6.7
Negotiation
Where it is considered that the breach of
planning control is unacceptable Officers will initially attempt to
negotiate a solution without going straight to formal action unless
the breach is causing significant harm. Negotiations may involve
scaling down or stopping an unauthorised use or activity or
changing or removing the unauthorised development.
Where negotiation is not an acceptable solution,
or it is clear at the outset that the breach is not capable of
being resolved, formal enforcement action will proceed where it is
expedient to do so. Service of a temporary stop notice may be
appropriate to prevent the breach becoming worse.
6.8
Not expedient to pursue formal action
There are cases where it would not be
‘expedient’ or worthwhile for the Council to take
enforcement action. Expediency is a test of whether the
unauthorised activities are causing serious harm, and the officer
investigating the case will consider this. The outcome of this
consideration will generally inform the course of the
investigation. Taking formal enforcement action is only one option
with other courses open to the Council. Examples of where it may
not be expedient to take action are as follows:
·
A technical breach of planning
control is so minor that it has no, or very little, impact on
amenity.
·
The work carried out is only
marginally in excess of that allowed under permitted development
and the increase causes no harm ie. a fence has been erected and is
only a few centimetres above the normal allowance of 2m (where it
does not front a road).
·
Where building work or a change of
use has taken place, but it is clear that retrospective planning
permission is likely to be granted.
Although development should not be carried out
without first getting planning permission, an enforcement notice
should not be issued solely to regularise development which is
acceptable in planning terms, but for which permission has not been
sought. In these cases, the Council will ask for an
application.
It is generally regarded as unreasonable for a
Council to issue an enforcement notice solely to remedy the absence
of a valid planning permission if there is no significant planning
objection to the building works/use.
Where officers conclude that it is not expedient
to take action the case will be closed (with a reasoned
justification).
Action taken should be proportionate to the
breach. Many technical breaches of planning control are
investigated (e.g. a fence or a rear extension slightly higher than
permitted development). In such cases it would be unreasonable to
require the removal of an entire building or fence where a slightly
lower structure could be put up without planning
permission.
We will work with owners to resolve situations,
but ultimately it is unlikely that formal action could be warranted
in the case of a technical breach.
In some cases, unauthorised development may be
rendered acceptable by the imposition of appropriate conditions on
a planning permission. For example, a change of use to a restaurant
may be acceptable in principle but give rise to concerns about late
opening hours. Rather than take formal action against the use, it
would be appropriate to request a retrospective application which
if, having assessed the detail and taken into account the views of
consultees, was found to be acceptable, could be granted permission
subject to a condition restricting hours of use.
A retrospective application is processed in the
same way as a standard planning application. This allows third
parties to be formally consulted and make their views known. In
addition to those adjoining the site, the Council notify anyone who
originally complained about the unauthorised work. The fact that
the development has already been carried out in part or full can
have no bearing on the Council’s decision on the
application.
The Council will specify a time period in which
a retrospective application must be submitted. The period given
will vary from case to case but will reflect the complexity in
preparing such a submission. Periods of 28 or 56 days are often
given. If no application is submitted the Council will consider the
expediency of taking further action, taking into account any harm
arising from the breach (and lack of conditions imposed on a
planning permission to control it). It may become necessary
to serve an Enforcement Notice.
If the development is unlikely to receive
permission the Council will not encourage the submission of a
retrospective application, although there remains a right to make
such an application. Unless the Council has served an enforcement
notice prior to the submission of the retrospective application
(which relates to those matters sought permission in the
application) the Council is duty bound to consider it.
The Council will, generally, refuse to process
retrospective applications which are submitted after serving of an
enforcement notice unless entertaining the application is likely to
result in an amended proposal which overcomes the reason for
serving the notice.
Development should be completed strictly in
accordance with the approved plans, which form part of the planning
permission. Following the grant of permission applicants often wish
to make variations. Sometimes, because of problems during the
construction process or a change in the client’s wishes. The
Council’s approval is required for any changes from the
approved plans, and this should be sought before work is carried
out. Sometimes, however, changes occur without the Council’s
prior approval.
Where these alterations are materially different
from the permission a new application for the whole development
will be required
Where the scale and nature of the alterations
results in a development that is not substantially different from
the one that has been approved, a “minor material amendment
application” will be invited which, in effect, seeks
permission for the changes proposed rather than the whole scheme
again. The Council will consult adjoining properties in the
consideration of these types of application and take into account
any representations submitted.
Where the changes proposed are extremely minor
(such as the omission of a window or reduction in the size of an
extension) the Council will request the submission of a
“non-material amendment”. This is also subject to a fee
but will usually be considered by exchange of letter and without
notification to neighbouring properties.
It is not practical or proportionate to monitor
all planning permissions granted by the Council, and all
development carried out as permitted development. Most development
occurring in the Borough is in built up areas close to adjoining
properties and the majority of alleged breaches of planning control
are reported by people living close to development. Most of the
Council’s planning enforcement officers time is spent
resolving reported breaches.
Compliance with pre commencement conditions is
also checked. In addition, planning officers will, as resources
allow, check sensitive development at key stages of construction
and on completion of the development.
With the advent of the new Biodiversity Net Gain
(BNG) legislation, applicants will be required to deliver 10%
“Biodiversity Net Gain” when building new housing,
industrial or commercial developments. This commenced on 12
February 2024 for major development and from 3 April 2024 for minor
developments. Documents will need to be submitted as part of
a planning application, including a metric detailing how a 10% net
gain will be achieved. Developers are required to achieve all
of their BNG on site. If this cannot be achieved on-site,
they can deliver through a mixture of on-site and off-site.
Developers can either make gains on their own land outside
the development site or buy off-site biodiversity units on the
market. If developers cannot achieve on-site or off-site BNG,
they must buy statutory biodiversity credits from the
government. This should be a last resort. There will be
a pre commencement condition on any granted planning
permission. This means that before any development begins,
applicants need to provide a biodiversity net gain plan to show the
existing and proposed biodiversity values of their sites. A
strategy of monitoring compliance of BNG is currently being
formulated within the Council, however, checking that a pre
commencement condition has been discharged before development is
implemented will fall to the Planning Enforcement Team.
Several
factors must be taken into consideration prior to any enforcement
action.
10.1
Human Rights Act 1998
When deciding
whether or not to take enforcement action, the Council will pay due
regard to the Human Rights Act 1998 and, in particular, to the
requirement not to act in a way which is incompatible with any
relevant Convention rights which are the right to a fair trial,
right to respect for private and family life, prohibition of
discrimination and protection of property. These rights are
qualified rights which means that, when considering enforcement
action, the Council will balance the rights of those who may be in
breach of the planning legislation against those affected by the
breach, including the community at large.
10.2
Public Sector Equality Duty (Equality Act 2010)
10.2.1A public authority must, in the exercise of its
functions, have due regard to the need to—
(a)
eliminate
discrimination, harassment, victimisation and any other
conduct that is prohibited
by or under this Act.
(b)
advance equality of
opportunity between persons who share a relevant protected
characteristic and persons who do not share it.
(c)
foster good relations
between persons who share a relevant protected characteristic and
persons who do not share it.
19/00303/DEMON
10.2.2For the purposes of the provisions of this
Section, pregnancy and maternity, age, gender reassignment,
disability, race, religion or belief, sex and sexual orientation
are all protected characteristics. That question in every case is
whether the decision maker has in substance had due regard to the
relevant statutory need, to see whether the duty has been
performed.
10.2.3The Council’s obligation is to have due
regard to the need to achieve these goals in making its decisions.
Due regard means to have such regard as is appropriate in all the
circumstances.
10.2.4The Council must consider if formal enforcement
action to remedy harm is wholly appropriate and proportionate. If a
breach of planning control has occurred and requires further
investigation, then the subsequent investigation must be
proportionate.
In any event, if human rights or public sector
equality rights are potentially affected, the Council must consider
that the public interest factors outweigh any potential
interference.
10.3
Corporate Priorities and Values
The Council
takes the following corporate priorities and values into
consideration when determining the expediency of enforcement action
against unauthorised development and changes of use.
The priorities for the 2024 - 2028 focus on:
C -
Community
A -
Addressing housing need
R -
Resilience
E -
Environment
S -
Services
Our
values, ethos and ways of working will inform and underpin
everything that we do:
P -
Pride in our Council, communities, and Borough
R -
Responsive and respectful
O -
Open and accountable
V -
Value for money
I -
Integrity
D -
Dependable
E -
Empowering and inclusive
The
Environment priority now includes the implementation of
Biodiversity Net Gain (BNG) obligations, which in turn means the
Planning Enforcement team will now investigate and enforce against
non-compliance with BNG planning conditions.
Our
priorities and values are outlined in more detail in the Corporate
Plan 2024 – 2028 which can be found here:
https://www.spelthorne.gov.uk/corporateplan
10.4
Financial Implications
In
taking enforcement action the Council must consider the financial
implications in doing so. The Council must first determine
that there is a specific breach of planning control and that the
harm caused far outweighs the cost of rectifying the
breach.
The
Council must also consider the likelihood of recuperating costs
from the recipient of the enforcement action. Could POCA
(Proceeds of Crime Act) be applied?
The
Council must exhaust all means of negotiation for a resolution to
the breach prior to commencing any costly enforcement
action.
Planning
enforcement is not statutory. However, we have a duty to
investigate planning breaches and it is only the taking of further
action that is discretionary.
11.1
Enforcement Notice
Enforcement Notices can be served where
development or a change of use has taken place without permission,
and it is considered expedient to do so. They are served on the
owner, occupier and any other person with an interest in the land
and must set out what is expected to happen (for example
demolishing a building or stopping a car repair workshop) in order
to:
·
Ensure development complies with the
terms of any planning permission granted
·
Stop the use of the land or restore
it to the condition it was in before the breach took
place
·
Ensure that development does not
have an adverse impact on amenity
A notice will specify a timescale for works to
be carried out, and it comes into effect a minimum of 28 days after
it is served. There is a statutory right of appeal to the Planning
Inspectorate against the notice during this period. Once the
Planning Inspectorate has received a valid appeal, the enforcement
notice has no effect until the appeal has been
determined.
Any appeal may include one or all of these
grounds:
a)
Planning permission ought to
be granted
b)
The development or change of
use has not taken place
c)
The development or change of
use does not need permission
d)
The development or change of
use is immune from action (e.g. been in place or operating too
long)
e)
The enforcement notice(s) were not
served correctly
f)
The works/action to be carried out
are excessive
g)
Not enough time has been allowed for
the works/action to be carried out
Given these rights of appeal it is important
that all relevant matters are taken into account before serving an
enforcement notice. This includes being clear about:
·
What the specific breach is (e.g.
building is too high, in the wrong place, agricultural building
being used for industrial purposes)
·
What must be done to set it right
(e.g. reduced height, demolish and re-build, stop the
use)
·
How long is given for the
works/actions to be carried out (e.g. three months, 12
months).
If the breach of planning control relates to a
listed building or unauthorised demolition within a conservation
area, the expediency of serving a listed building enforcement
notice or a conservation area enforcement notice will be
considered. Where appropriate prosecution in the Courts will be
commenced.
All enforcement notices are placed on the
Council’s enforcement register which is available to view on
the Council’s website.
11.2
Planning contravention notice (PCN)
This is often served prior to serving an
enforcement notice. It can be served on the owner or occupier of
the land in question, or a person who is carrying out operations or
using the land. The PCN gives those people 21 days to provide the
information which the Council has asked for. If they do not give
the information they can be prosecuted (maximum fine of
£1,000). To knowingly provide false information on a PCN can
result in a fine of up to £5,000.
11.3
Other requisition for information notices
The Council can require anyone who receives a
requisition for information notice to supply, in writing, details
of their interest in a property and details of anyone else having
an interest in the property. A reply must be supplied within 14
days. Failure to comply with the requirements of a notice or makes
a false statement in a reply is an offence punishable by a fine of
up to £5,000.
The Council can also require those individuals
to state in writing the nature of their interest in a property and
the name and address of any other person known to them as having an
interest in the property, such as a freeholder, mortgagee, lessee
or otherwise. Failure to return the form or to provide an untrue
statement is an offence punishable by a fine up to
£1,000.
11.4
Breach of condition notice (BCN)
This can be
served where a planning condition has not been complied with. The
type of condition which has been breached has to be taken into
account (e.g. windows are not obscure glazed or contaminated land
conditions have not been complied with), and what should be done to
correct the situation. Once issued the notice does not take effect
for 28 days.
A BCN has to
set out what is required to ensure compliance with the condition
and by when. There is no appeal against a BCN and therefore it can
be more expedient than issuing an enforcement notice. Failure to
comply with the notice is dealt with by a prosecution in the
Magistrates Court (maximum fine is currently £2,500).
The BCN is ideal for matters where the steps to be taken are
relatively simple and can be readily achieved.
11.5
Stop notice
A stop notice
may be served where urgent action is necessary to stop a relevant
activity before the end date of the related enforcement
notice.
A stop notice
must be served at the same time or after the service of an
enforcement notice.
The stop
notice must refer to the enforcement notice, specify the activity
or activities that have to stop and set the date when it comes into
effect. Failure to comply with the notice is an offence (maximum
fine on summary conviction is £20,000). The Council must
consider the use of stop notices carefully as they carry with them
significant statutory compensation provisions.
11.6
Temporary Stop Notice (TSN)
A TSN can be issued without an enforcement
notice and is designed to halt breaches of planning control for a
period of up to 28 ays.
This comes into immediate effect and is used to stop work and to
see if issues can be resolved within a limited timescale. These are
most often served where a development has started but conditions on
the planning information requiring further action before
commencement have not been complied with (e.g. a contaminated land
investigation and mitigation measures have not been
agreed).
Whilst TSNs also carry some compensation
provisions these are significantly lower than with a stop notice
and therefore the risk to the Council is reduced.
11.7
Section 215 notice
In cases where the amenity of an area is
adversely affected by the condition of land or buildings a Section
215 Notice (untidy land) may be served. This will set out what is
expected to happen (e.g. remove building materials/shrubs/board up
windows), when it needs to be done by, and the date the notice
takes effect.
A Section 215 notice takes effect after 28 days
service during which time an appeal can be made in the Magistrates
Court.
Where a breach of planning control involves
building operations and has been ongoing for more than four years
the Council cannot serve a notice. For example:
·
Extensions to dwellings
·
New buildings
·
Laying hardstanding
·
Change of use of any building to a
single dwelling.
Unauthorised changes of use and breaches of
conditions are subject to a 10 year time limit (e.g. use of an
agricultural building for industrial warehousing).
The Council are not able to take action on
anything beyond the four or ten years, and the use becomes lawful.
The landowner can apply for a Certificate of Lawful Existing Use or
Development (CLEUD) and, if the evidence is clear, they can
‘regularise’ the situation. However it should be noted
that even if a use is lawful, it does not mean that the Council
would have granted planning permission if this has been applied for
before the development/change of use had taken place.
Serving an enforcement notice in respect of a
particular development ‘stops the clock’ in relation to
these four and ten year time limits. Therefore where the Council
consider a breach may be close to the four or ten year time limit
it may seek to take urgent enforcement action to prevent such a
development or use becoming lawful
The Localism Act 2011 introduced a new
enforcement power in relation to time limits which allows Councils
the possibility to act against concealed breaches of planning
control even after the usual time limit for enforcement has
expired.
Where a notice has been served and has not been
complied with there are three main options available to the
Council.
13.1
Prosecution
Prosecution proceedings can be instigated
against any person who has not carried out the works expected of
them and where the end date for compliance/action has passed. This
may be in relation to any of the following Notices:
·
enforcement notice
·
listed building enforcement
notice
·
conservation area enforcement
notice
·
breach of condition
notice
·
section 215 notice
·
stop notice
Cases involving unauthorised works carried out
to a Listed Building and unauthorised demolition in a Conservation
Area also constitute an offence in their own right. Consideration
of whether it would be expedient to prosecute for these works
rather than issuing a notice will be given on a case by case
basis.
Before commencing any legal proceedings, the
Council needs to be satisfied that there is sufficient evidence to
offer a realistic prospect of conviction and that the action taken
is in the public interest.
13.2
Direct action
Where any
works/actions required by an enforcement notice or section 215
notice have not been completed within the time period (other than
stopping the use of a piece of land), consideration will be given
whether it is expedient to enter the land and undertake the works
(e.g. Demolish the building and recover from the owner of the land,
any expenses reasonably incurred by them in doing so.
In most cases the Council will seek to prosecute
the failure to comply with a notice before seeking to initiate
direct action.
13.3
Injunction
Where an enforcement notice has not been
complied with and, because of the special circumstances of the
case, either direct action or prosecution would not be an effective
remedy, we will consider applying to the Court for an
Injunction.
An injunction can also be applied for where
there is clear evidence that a breach of planning control is
anticipated but has not actually occurred. Such action will only be
considered if the breach, actual or anticipated, is particularly
serious and is causing or likely to cause exceptional harm (e.g.
materials for hard standing being put on a site and services being
laid).
13.4
POCA – Proceeds of Crime Act
The Proceeds of
Crime Act 2002 (“POCA”) sets out the legislative scheme
for the recovery of criminal assets with criminal confiscation
being the most commonly used power. Confiscation occurs after a
conviction has taken place.
The aim of the
asset recovery schemes in POCA is to deny criminals the use of
their assets, recover the proceeds of crime (planning and
non-planning related) and disrupt and deter criminality.
With regard to
planning enforcement the Council will consider requesting a
confiscation order if it is considered expedient to do
so.
The Crown Court
must consider making a confiscation order against a defendant under
Part 2 POCA if:
a) the defendant is convicted of an offence or
offences in the Crown Court, or has been committed to the Crown
Court for sentence or to be considered for a confiscation order;
and
b) the prosecutor requests that the court
consider making a confiscation order, or the court believes that it
is appropriate to consider making a confiscation order.
14.1
Advertisements
The display of advertisements without consent is
an offence the Council can prosecute against without the need to
issue a notice. Where it has been considered that an advertisement
should be removed an offender will normally be given one written
opportunity to remove the advertisement voluntarily. Failure to do
so may result in further action being taken without further
correspondence.
The Council is also able to remove or obliterate
posters and placards and will consider using these powers as
appropriate
The Localism Act 2011 has introduced new
provisions in respect of dealing with advertisements. These are
Removal Notices, Action Notices and the powers to remedy the
defacement of property. Each provision includes rights of appeal to
the Magistrates Court.
14.2
Removal notices
The Council can seek removal of any structure
used to display an advertisement and where the notice is not
complied with can remove the structure and recover the cost of
doing so.
14.3
Action notices
Where there
is a persistent problem with unauthorised advertisements an Action
Notice can be issued specifying measures to prevent or reduce the
frequency of the display of advertisements. Where the notice is not
complied with the Council may remove the structure and recover the
cost of doing so.
14.4
Power to remedy defacement of premises
Where a sign is readily visible from an area
where there is public access and is considered to be offensive or
damaging the amenity of the area, a Notice may be issued requiring
the removal or obliteration of the sign. As with the above
provisions failure to comply with the notice will allow the Council
to undertake the works in default and recover costs (except where
it relates to a flat or house or is within the curtilage of a
house).
14.5
Trees
Legislation protects trees, which are the
subject of Tree Preservation Orders (TPOs) or are within a
Conservation Area, from felling or other works without permission.
Such works are an offence and prosecution without a notice can take
place. However, such action would not remedy the harm
caused.
Where a tree covered by a TPO has been removed a
notice requiring an appropriate replacement tree to be planted can
be issued.
14.6
High hedges
From 1 June 2005 Councils have had the power to
deal with disputes over high hedges where all reasonable steps to
resolve the issue have been taken by the relevant parties. In cases
where we find in favour of the complainant we will ensure, through
enforcement action, if necessary, that any specified schedule of
remedial works is carried out.
If you feel that there is unreasonable delay
with an enforcement investigation, or you believe there is an error
in the way an
investigation is being carried out, please inform the Planning
Enforcement Officer dealing with your case so that they may respond
or take the necessary action.
If you remain dissatisfied with the service, it
is open to you to make a formal complaint. Please remember that the
complaints procedure does not apply to matters that are directly
related to a Council or Panel decision. You can, of course, contact
your local Councillor at any time.
If you remain dissatisfied, you may write to the
Local Government Ombudsman and information on how to do this will
be given to you by the Head of Corporate Governance. The Ombudsman
will not normally deal with a complaint unless it has first been
through the Council’s own complaint procedures and will deal
only with matters relating to the conduct of the
investigation.
