6. The assessment and decision making process
Initial action
5.1 The investigation will be carried out by a Planning Enforcement Officer or a Planning Officer, as considered appropriate, since the latter will have greater knowledge of the site and breach if it relates to a planning permission not built in accordance with plans or where a planning condition has not been complied with.
5.2 Following receipt of a complaint, or following monitoring of a development by the Council, the matter will be screened to see if a breach of planning control may have occurred. This will be a desktop investigation to check, for example, planning history, other records and relevant legislation. If it is established at this stage that there is no breach the Complainant will be advised and no further action will be taken. Where appropriate, information will be passed to other departments or organisations for investigation e.g. Building Control, Devon County Council, and Environment Agency etc.
Site Visit
5.3 If the initial screening indicates that there may be a breach a site visit will be made (if one has not already been carried out as part of monitoring the development). If the land and/or building(s) are occupied the enforcement officer may make an appointment with the owner/occupier. This is not always possible or advisable as it may alert them and enable them to temporarily remove or disguise the subject matter of the complaint. In some cases 24 hours’ notice may be required to enter certain properties.
5.4 At the site visit the officer will identify themselves and explain the reason for the visit. Proof of authorisation to enter land under the 1990 Planning Act will be provided if requested. The enforcement officer’s role is simply to gather the facts of the case and they will not always be able to advise on the acceptability of the works and the potential to gain consent for any unauthorised works.
5.5 The officer will record a description of the site and the alleged breach of planning control, take any necessary measurements/photographs, obtain the identity of the owner/ occupier/person responsible for the activity/operations taking place if possible and identify any neighbouring properties likely to be affected.
5.6 If a breach of planning control has clearly taken place the owner/occupier/person responsible will be informed straight away (if they are present). If the case is not clear cut then the enforcement officer may need to confer with colleagues or check the legislation before reaching a decision. In either case where a breach has occurred the owner/occupier/person responsible will be advised that if they carry on with the activity/development this will be entirely at their own risk and may be subject to enforcement action. The investigating officer will have regard to the provisions of Sections 66and 67(9) of the Police and Criminal Evidence Act 1984(PACE) in relation to cautioning suspected offenders.
Following the site visit
5.7 If the owner/occupier/person responsible was not present or further investigations were required then they will be contacted and advised of the Council’s intended action and options available to resolve the matter as soon as possible after the site visit.
5.8 If it was established at the site visit that there is no breach the Complainant will be advised and no further action will be taken.
Further investigations
5.9 Further investigation may be necessary following the site visit to determine whether a breach has occurred and may involve:
- Monitoring the site to collect further evidence. Where appropriate, the complainant will be requested to take photographs or keep a diary of events for use as evidence if the matter proceeds to formal enforcement action.
- Serving a Planning Contravention Notice (PCN) requiring the owner/occupier/person responsible to provide information relating to the potential breach of planning control within 21 days (see Section 6).
- Checking against the legislation to see if the works are within permitted development limits.
- Consultation with other departments or organisations.
- A Land Registry Search to establish ownership of the land (if registered) and a ‘Requisition for Information’ to identify any other people with an interest in the land together with information about the length of time the activity/development has been in existence.
Results of Investigations
5.10 The following outlines likely steps to be taken in certain scenarios and are summarised in a flow-chart at the end of Section 5(see further sections 7, 8 and 9 in relation to unauthorised works to trees, listed buildings and non-compliance with a legal agreement):
The complaint may relate to a non-planning matter such as disputes over land ownership, boundary disputes, private covenants and legal agreements/obligations, moral or ethical concerns, commercial competition and private interests.
5.11 As these are outside the jurisdiction of planning, no planning enforcement action can be taken. However if the complaint can be dealt with by another Council service the Complainant will be advised and the relevant information passed on. If it appears that another authority or organisation may be able to assist the Complainant they will be advised of this and provided with contact details if possible.
The complaint may relate to an activity, building or works that are lawful for planning purposes, for example the works may be "permitted development".
5.12 In these circumstances no planning enforcement action can be taken and the Complainant will be advised of this.
The complaint may relate to a very minor breach of regulations and regarded as so trivial that formal action would not be justified as no harm is being caused (for example there is no harm to the amenity of an area and/or residents, no harm to the visual amenity of the area, no highway safety issues and the proposal complies with planning policy).
5.13 If action were taken in these circumstances the Council could be justifiably criticised and costs may be awarded in any resultant appeal. No planning enforcement action will be taken in these circumstances and the Complainant will be advised of this. Enforcement action will not therefore be taken against a minor or technical breach which causes no harm to the local area (examples could include a shed constructed a bit higher than permitted and located within a large garden away from neighbours and not highly visible, or a window inserted in a dwelling that does not overlook neighbours). Nor will enforcement action be taken purely to regularise breaches of planning control that have been found to be acceptable. In these cases an application may be invited for consideration through the usual process to regularise the situation but further formal action will not be taken regardless of whether or not an application is submitted.
A breach of planning control has occurred.
5.14 In these circumstances the Council will consider what enforcement action should be taken.
5.15 Although a complaint may be received regarding a single matter (for example a building being constructed in the wrong location), the Council will look at all other aspects of the development (such as window positions and height) to establish if any other breaches have occurred. If other breaches have occurred, these will be investigated.
5.16 There are time limits for taking enforcement action. In most cases the development will be immune from enforcement action if no action is taken:
- Within 4 years of substantial completion of the construction of a building;
- Within 4 years for an unauthorised change of use to a single dwelling;
- Within 10 years for any other breach.
5.17 These time limits do not prevent enforcement action where a further breach has taken place within 4 years of previous enforcement action, where it relates to a listed building, or where there has been deliberate concealment of a breach.
TAKING ENFORCEMENT ACTION
5.18 Once investigations are complete and a breach of planning control causing harm has been identified, officers will decide whether or not it is expedient to take enforcement action. They take into account the development plan and any other material considerations. Many breaches of planning control can be resolved informally and by negotiation with the owner/occupier. Formal action will be taken only where other means to resolve the problem have been unsuccessful.
5.19 The Council will take enforcement action when it is essential to maintain public safety, the character and appearance of the area, the area’s social and economic well-being and to preserve the natural and built environment. The impact of developments varies greatly and enforcement action should be proportionate to the specific breach.
5.20 Enforcement action will not be taken merely to rectify an absence of planning permission if it is likely that planning permission would have been granted for the development or where there is no loss of public amenity.
5.21 Whilst ignorance of the law is not an excuse, the attitude and circumstances of the perpetrator will be taken into account, including any expression of regret, helpfulness and co-operation with the investigation and any indication that the perpetrator was acting in good faith. Individual personal circumstances and any other mitigating factors will be taken into consideration where appropriate.
5.22 Where enforcement action is considered expedient officers will draw this to the attention of the person responsible (and the landowner if different). They will be advised of the most appropriate course of action, which will be proportionate to the breach of planning control, and generally as follows:
The development can be amended such that planning permission is no longer required:
5.23 The Council will advise if changes can be made to a proposal so that it no longer requires planning permission. If the development is amended such that it no longer requires planning permission, no further action will be taken once the works have been carried out and officers have confirmed that it no longer requires planning permission. The Complainant will be advised of the outcome.
The development could satisfy relevant policies and other material considerations with modification and/or the imposition of appropriate conditions:
5.24 The Council will request a "retrospective" application for the relevant permission/consent. A period of 1 or 2 months (according to the complexity of the matter) will be allowed for preparation of the application. This does not automatically imply that permission will be granted. Any application would follow the normal planning process, including consultation and notification of neighbours. Formal enforcement action will not take place until after the application has been determined and will not be taken at all if the breach of planning control is remedied by the grant of permission.
The breach could be immune from enforcement action due to the passage of time:
5.25 The person responsible will be advised of the option to submit an application for a Certificate of Lawful Use or Development. A period of 1 or 2 months (according to the complexity of the matter) will be allowed for preparation of the application. This does not automatically imply that a certificate will be granted. Any application would follow the normal planning process. Formal enforcement action will not take place until after the application has been determined and will not be taken at all if the breach of planning control is remedied by the grant of a certificate.
The breach is causing serious harm and permission is unlikely to be given:
5.26 The Council will ask for the activities or theworks to cease voluntarily. A reasonable time will be allowed, depending on what needs to be done. For example business tenants will be allowed a suitable time to find somewhere else to operate if livelihoods are affected. A retrospective planning application will not be invited, but if one is submitted enforcement action may be suspended to allow determination of the application. However, if the proposal is fundamentally unacceptable and serious harm is being caused, the Council may not await the outcome of an application before taking further action.
The breach cannot be resolved by negotiation and/or a retrospective application is refused:
5.27 Enforcement action will be taken if it is expedient. This is a discretionary decision made on a case by case basis and must be taken only after proper consideration of the relevant facts and planning merits. Formal action must be justified and the specific requirements and the time period to comply with these must be reasonable. The responsible person will be advised of the right of appeal against refusal of retrospective permission but the Council will not await the submission and outcome of an appeal before taking formal enforcement action, because this can be used as a mechanism for prolonging a breach. There is a right of appeal against an enforcement notice and this can be dealt with concurrently with an appeal against a refusal of permission.
The breach is resulting in serious and irreversible harm requiring immediate prohibition:
5.28 The responsible person will be advised to stop work immediately. If the request is not complied with the Council will serve a ‘Stop Notice’ or ‘Temporary Stop Notice’ (TSN). These will only be directed at preventing the specific harm that is occurring. As a Stop Notice can only be served in conjunction with an enforcement notice it is not possible to serve one immediately a breach of planning control is identified. A TSN can be served on its own and so can be served promptly. This will stop the breach of planning control straight away (but only for a limited period of 28 days). During this time the Council will decide whether further enforcement action is expedient. A TSN cannot be used to effectively deprive someone of their home but it can be used to prevent the home being established. Stop Notices and Temporary Stop Notices are only available to deal with development requiring planning permission.
AUTHORISATION OF ACTION
5.29 Enforcement action is normally authorised by the Service Lead – Planning Strategy and Development Management under delegated powers that may be passed down to other senior planning officers. However, where matters are considered to be of strategic or wider importance, the Service Lead may refer the matter to the Development Management Committee.
5.30 Where it is considered that there has been a breach of the legislation and while not a trivial matter it does not warrant further action then the issue will be reported to the Chairman of the Council’s Development Management Committee to agree that no further action be taken. In the event that agreement cannot be reached with the Chairman then the matter would be referred to the Development Management Committee.