7. Planning enforcement powers available
6.1 The following details the planning enforcement and related powers available to the Council.
Planning Contravention Notice
6.2 A Planning Contravention Notice can be issued under Section 171C of the Town and Country Planning Act 1990 and can be used to:
- allow the Council to require information needed for enforcement purposes about any operations being carried out; any use of; or any activities being carried out on the land, and;
- can be used to invite its recipient to respond constructively to the Council about how any suspected breach of planning control may be satisfactorily remedied.
6.3 A planning contravention notice can be served when the Council believes that a breach of planning control may have occurred to find out more information before deciding what, if any, enforcement action to take. It cannot be used to undertake an investigative trawl just to satisfy the Council about what activities are taking place on a parcel of land.
6.4 The power is discretionary and as such the Council does not need to issue a planning contravention notice before taking any enforcement action.
6.5 Failure to complete or return a notice within 21 days is an offence. It is also an offence to provide false or misleading information on the notice. The offence can result in a fine by the courts.
6.6 An enforcement notice should only be issued where the Council is satisfied that a breach of planning control has occurred and it is expedient and in the public interest to issue a notice.
6.7 An enforcement notice requires works to be undertaken to rectify a breach of planning control within a specified time period.
6.8 The legislation (Section 172 of the Town and Country Planning Act) 1990 requires that an enforcement notice shall: -
- State the nature of the alleged breach;
- Identify the land to which the notice relates;
- Clearly state the matters that appear to constitute the breach of planning control;
- State the Council’s reason for issuing the notice, including any relevant development plan policies that are allegedly contravened;
- Specify the date on which the notice takes effect (not less than 28 days after service to allow for an appeal);
- Specify the steps which the Council require to be taken or the activities which the Council require to cease in order to remedy the breach or any injury to amenity it has caused;
- State a reasonable period for compliance after the notice takes effect, having regard to the practicalities of carrying out the required steps and the effect that the breach is having;
- Be registered as a local land charge in Part 3b of the Land Charges Register.
6.9 The enforcement notice will state the breach of planning control, the reasons for serving the notice and the steps to be taken in plain language that will be understood by anyone required to comply with its requirements. This is particularly important given that criminal liability attaches to any breach of the requirements of an enforcement notice. This should also make checking for compliance easier and assist in mounting a successful prosecution if the notice is not complied with. The enforcement notice may require the restoration of the land to its condition before the unlawful development took place; the demolition or alteration of any building or other works; the discontinuance of the use of land; or the carrying out of any building works or other operations.
6.10 The enforcement notice must be directed only at the specific breach. It cannot take away existing lawful rights to use land or retain buildings and other works. The Council can direct an enforcement notice to only part of the breach of planning control and/or it can require only a partial remedy. This is termed "under enforcement" and will be used to take action where only part of the unauthorised works causes harm and therefore only action against those elements is appropriate. The notice will be served on the owner of the land and therefore tenants carrying out works to a rented property should keep their landlord advised of any enforcement investigation on their property.
6.11 It is an offence not to comply with an enforcement notice once the period for compliance has elapsed, and there is no outstanding appeal. A person guilty of an offence is liable on conviction to an unlimited fine. The Courts will have regard to any financial benefit accrued from the offence when determining the fine. The Council on receipt of a successful conviction can apply for a Confiscation Order under the Proceeds of Crime Act 2002 to recover any financial benefit obtained through the unauthorised development.
Appeals against an Enforcement Notice
6.12 There is a right of appeal to the Secretary of State against an enforcement notice. The appeal must be lodged before the notice takes effect. Details of how to appeal will be included with the enforcement notice. An appeal can be lodged on one or more of the following grounds:
a) That planning permission should be granted for what is alleged in the notice.
b) That the breach of control alleged in the enforcement notice has not occurred as a matter of fact.
c) That there has not been a breach of planning control.
d) That at the time the enforcement notice was issued it was too late to take enforcement action against the matters stated in the notice
e) That the notice was not properly served on everyone with an interest in the land.
f) That the steps required to be taken, or the activities required to be ceased, exceed what is necessary to remedy the breach of planning control or to remedy any injury to amenity which has been caused by the breach
g) That the time given to comply with the notice is too short.
6.13 When an appeal is made against an enforcement notice on ground a) above, an application for permission to retain the development is deemed to have been made. This will only be considered by the Planning Inspectorate if the appropriate fee (two times the planning application fee where applicable) has been paid.
The Breach of Condition Notice (BCN)
6.14 This is an alternative to an enforcement notice that is available to remedy the failure to comply with any condition of a planning permission. There is no right of appeal and failure to comply is an offence.
6.15 The BCN must specify the steps that must be taken, or the activities that must cease in order to secure compliance with the condition(s). The BCN may, therefore, be positive (requiring something to be done) or prohibitive (requiring something to stop). Unlike an enforcement notice, a BCN can only require full compliance. A BCN also has to specify a period for compliance, which shall be not less than 28 days.
6.16 Non-compliance with the notice is an offence that can be prosecuted through the Magistrate’s court. There is no right of appeal against the notice.
Complying with an Enforcement Notice or Breach of Condition Notice
6.17 As soon as the compliance period set out in an enforcement notice or BCN has passed, enforcement officers will investigate whether or not the breach of planning control is continuing.
6.18 When officers conclude that notices have been complied with, this will be confirmed verbally to the owner/occupier and to anyone who has complained about the building works or activity. Compliance with an enforcement notice does not, however discharge it. The notice will remain in place to prevent any further breaches and it will continue as a registered charge on the land or property.
6.19 Failure to comply with the requirements of an enforcement notice or BCN is an offence. If there are grounds to suspect that an offence has been committed, interviews of suspects or witnesses will be carried out in accordance with Police and Criminal Evidence Act 1984 (PACE) requirements. The Council will take firm action where the requirements of an enforcement notice or BCN have not been complied with.
Further action following non-compliance with an Enforcement Notice or BCN
6.20 The Council may attempt to bring the matter to a successful conclusion as quickly as possible through the pursuit of action in the Courts (usually Magistrates Courts). Any decision to prosecute will have due regard to the availability, nature and strength of evidence and will consider whether the public interest is served (see sections below under Prosecution).
6.21 Alternatively, an injunction may be sought (see below). This is an order from the Court to comply with the Enforcement Notice. Failure to then follow the court order is contempt of court and carries an automatic prison sentence.
6.22 The Council can take Direct Action (see below) when the requirements of a Notice have not been complied with. This will only be considered in exceptional circumstances. The Council can place a legal land charge against the property to enable all reasonable costs incurred in the direct action to be recovered.
6.23 The Council can, when appropriate to do so, under Section 183 of the Town and Country Planning Act serve a Stop Notice requiring alleged breaches of planning control (including activities)to cease immediately. Such a notice can only follow the service of an Enforcement Notice. There are limitations on the service of this notice and additionally compensation may be payable by the Council in some circumstances if the recipient makes a successful challenge. It is used very selectively and it is not necessarily an instant solution.
6.24 The Stop Notice is not usually effective until 3days after it is served and cannot prohibit the use of any building as a dwelling house.
6.25 In certain circumstances the Council can be liable for compensation if the associated enforcement notice is quashed, varied or withdrawn.
6.26 The serving of a notice is discretionary and should only be used where it is expedient that any relevant activity should cease before the expiry of the compliance period in the associated enforcement notice.
6.27 Contravention of a Stop Notice is an offence with an unlimited fine. The Court will have regard to any financial gain that has accrued, or likely to accrue when deciding the fine.
6.28 There is no right of appeal against a Stop Notice.
Temporary Stop Notices
6.29 Where the Council consider that there has been a breach of planning control and it is necessary in order to safeguard the amenity of the area that the activity that amounts to the breach should stop immediately, Section 171E of the Town and Country Planning Act 1990 enables the local planning authority to issue a temporary stop notice. This differs from the normal stop notice powers because the temporary stop notice does not have to wait for an enforcement notice to be issued. In addition, the effect of the temporary stop notice will be immediate.
6.30 A Temporary Stop Notice can require an activity to cease, or reduce to minimise any impact but cannot be used to prevent the use of a building as a dwelling house.
6.31 A Temporary Stop Notice expires after 28 days. Should further action be required after the 28 days an enforcement notice and stop notice will be required.
6.32 Contravention of a temporary stop notice could result in prosecution and is an offence with an unlimited fine.
6.33 There is no right of appeal against a temporary stop notice.
6.34 Where the Council considers a breach of planning control to be a serious and immediate risk to health and safety, or necessary in terms of expediency, it may apply to the County or High Court for an Injunction under section 187B of the Town and Country Planning Act 1990. This can be extremely expensive, but can be effective in appropriate circumstances. An injunction is a special court order that requires a party to refrain from certain acts or to carry out certain measures.
6.35 Proceedings for an injunction are the most serious enforcement action a Council can take as failure to comply with an injunction can lead to prison for contempt of court. As a result an injunction is usually a last resort following persistent breaches of planning control.
Planning Enforcement Order
6.36 Where somebody deliberately conceals unauthorised development, it may not come to light until the period for taking action (4 of 10 years) has expired. A planning enforcement order enables the Council to take action notwithstanding the time limits.
6.37 Where there is sufficient evidence of a breach, the Council can apply for a planning enforcement order under sections 171B, 171BB and 171BC of the Town and Country Planning Act 1990.
6.38 The application must be made to the magistrate’s court within 6 months of the Council having sufficient evidence to identity the apparent breach. There is a right to be heard by the court. The Council has to prove that positive steps were taken to conceal the unauthorised development.
6.39 The effect of the order is that the Council will be able to take enforcement action, generally within a year of the order being granted.
Advert Removal Notice
6.40 Sections 225 of the Town and Country Planning Act 1990 provide the Council with powers to deal with illegal adverts.
6.41 Section 225A of the 1990 Act (as amended) allows the Council to remove an illegal advert through the serving of an Advert Removal Notice. If the notice is not complied with within 22 days, the authority may remove the structure/advert and recover any reasonable expenses incurred in doing so.
6.42 There is a right of appeal to the magistrate’s court.
6.43 The Council also has powers under section 225 to remove or obliterate any placard of poster displayed illegally following advance notice to the person responsible for the display.
High Hedges Remedial Notice
6.44 The Council can take action where a hedge or a row of trees forming a hedge cause a significant loss of amenity to a neighbouring property. The legislation does however require complainants to have approached the owner of the hedge and pursued all reasonable means of mediation before making a complaint to the Council. If a complaint has been properly made and the Council decide that action should be taken to resolve the complaint, we may issue a formal notice to the person responsible for the hedge, setting out what must be done and by when. This action is under the Anti-Social Behaviour Act 2003 and is known as a remedial notice. The remedial notice can include long-term maintenance of the hedge at a lower height. It cannot involve reducing the height of the hedge below 2 metres, or its removal. Although the Council cannot require such action, the hedge owner is free to go further than the remedial notice requires. The remedial notice becomes a charge on the property and legal obligations under such a notice pass to any subsequent owners. The Council’s decision can be appealed to the Planning Inspectorate by the applicant or person affected by the Notice.
Untidy Land Notice
6.45 Owners and occupiers sometimes neglect their land and buildings and allow them to become seriously unkempt or derelict. This can create eyesores that can be particularly damaging for the neighbourhood. Section 215 of the 1990 Act empowers planning authorities to require owners to take steps to alleviate these problems. These powers can be used in a variety of situations –e.g. heavily overgrown and neglected gardens; derelict buildings and sites that disfigure town centres. The power can also be exercised in conjunction with other environmental powers such as those directed to the upkeep of listed buildings and powers exercised by the Council’s Environmental Health and Building Regulations Services. Officers will liaise with these services to ensure that the most appropriate remedy is used.
6.46 Officers will investigate such sites and if remedial action is necessary they will contact the owner and advise them that the state of their land and/or buildings is causing problems. They will be advised of the steps they need to take to alleviate the problems and given (initially) 28 days to voluntarily carry these out. If no serious effort has been made, the Council will serve a formal notice compelling the owner/occupier to take the necessary steps. The notice becomes effective after 28 days. There is a right of appeal to the Magistrates or Crown Court. If this happens the notice has no effect pending the outcome of the appeal.
6.47 Once the notice becomes effective, it is an offence not to carry out the required steps within the specified time period. The Council may prosecute the offender for non-compliance. It may also enter the land, carry out the works and recover the costs from the owner either by sending them a bill or applying to the Land Registry to place a charge on the property.
6.48 The Council will consider commencing a prosecution in the Courts against any person who has failed to comply with the requirement(s) of any of the above Notices where the date for compliance has passed and the requirements have not been complied with.
The decision to prosecute:
6.49 In making a decision on a prosecution the authorised officer will apply two tests. Application of these tests will ensure that all relevant factors are considered and that fair consistent decisions are made about each potential prosecution.
6.50 The first test is consideration of the evidence. If the case does not pass the evidential test a prosecution must not go ahead no matter how serious the case is. If the evidential test is satisfied the authorised officer will then consider if it is in the public interest to prosecute. A prosecution will only be taken if both tests are satisfied.
The Evidential Test:
6.51 The first matter the Council will look at when considering a caution, administrative penalty or a prosecution is whether there is enough evidence to prosecute the matter. This is the evidential test. If the case does not pass the evidential test it must not go ahead no matter how serious or important the case may be. In order for a case to pass the evidential test there must be enough evidence to provide a "realistic prospect of conviction" against each defendant on each charge.
6.52 Authorised officers must be satisfied that there is sufficient admissible reliable evidence to provide a realistic prospect of conviction. This is detailed further in the overarching Regulatory Enforcement and Prosecution Policy published by the Council.
6.53As part of the process the Council must consider what the defence case is and how it is likely to affect the prosecution case. A realistic prospect of conviction is an objective test; it means that a jury or a bench of magistrates, properly directed in accordance with the law, is more likely than not to convict the defendant of the charge alleged. When deciding whether there is a realistic prospect of conviction officers should have regard to whether the evidence can be used in court and also whether or not it is reliable.
6.54 If the evidential test is satisfied then the most appropriate way of dealing with the matter will be assessed. When considering which course of action is the most appropriate the Council will consider the factors outlined below. This is called "the Public Interest Test".
The Public Interest Test:
6.55 The more serious the offence is the more likely it is that a prosecution should take place. However the Council will weigh public interest factors carefully. Public Interest Factors in favour of and against Prosecution are detailed in the overarching Regulatory Enforcement and Prosecution Policy published by the Council.
6.56 Failure to comply following a successful prosecution may lead to further prosecutions to secure compliance where an offence is on-going.
6.57 Where an offence leads to on-going financial or other gain for the offender then the Council will consider whether to take action under the Proceeds of Crime Act 2002 to ensure that the offender does not gain from their actions.
6.58 The Council is empowered to take direct or default action to remedy a breach of planning control if the requirements of a Notice have not been complied with. This will only be considered in exceptional circumstances. This may involve the use of contractors to enter a site and physically remove or put right unauthorised building work. Such circumstances are likely to arise when successive fines by the Courts have not proved to be a sufficient deterrent for the perpetrators of the breach. It may also be considered where the effects of a breach of planning control are so harmful that compliance with notices should not be subjected to delay in Court processes. The Council can place a legal land charge against the property to enable all reasonable costs incurred to be recovered.