4. What is a breach of control?
3.1 The enforcement of planning law is complicated. This is because central government attempts to balance the rights of individuals to use or alter their property against the need to safeguard the character and quality of towns/villages/the countryside, amenity of people and an area, and to uphold the planning policies of the district.
3.2 The planning enforcement system generally givesthe benefit of the doubt to anyone undertaking the unauthorised development, and Councils are expected to give those responsible for undertaking unauthorised development an opportunity to correct matters before taking formal action.
3.3 If the Council’s actions are considered too onerous or legally incorrect, it can be awarded costs against it and/or have its decisions overturned at appeal or by the courts. Maladministration can also be found against the Council by the Local Government Ombudsman if the Council fails to take effective enforcement action when it was plainly necessary, or takes action when it shouldn’t. Such a decision can also lead to the payment of compensation by the Council to acomplainant.
3.4 The Council’s power to take enforcement action comes from Parliament under the Town and Country Planning Act 1990, the Planning (Listed Building and Conservation Area’s) Act 1990, the Planning and Compensation Act 1992, Town and Country Planning (Control of Advertisements) Regulations 2007, Anti-Social Behaviour Act 2007 and the Localism Act 2011. There are also powers in relation to the Community Infrastructure Levy under the Community Infrastructure Levy Regulations 2010 (as amended).
3.5 For a breach of planning control to have occurred, it must first be established that development requiring planning permission has taken place. Development is a legal term and generally means building works and/or some changes of use. Building works can include the construction of a building, excavations, extension, although small-scale extensions to houses may not need planning permission. Changes of use can include a change from a shop or office to a dwelling, although some changes of use such as a clothes shop to a hairdressers or doctor’s surgery to a day nursery do not require planning permission.
3.6 Not all development requires planning permission and the main sources of guidance on this are:
-The Town and Country Planning (General Permitted Development) Order;
-The Town and Country Planning (Use Classes) Order; and
-The Town and Country Planning (Control of Advertisements) Regulations.
3.7 These documents, which can be viewed on the Governments website, detail instances where permission is not required. For example, certain structures do not need permission because of their size, height or location etc. This is called ‘permitted development’ and specific guidelines are given in the General Permitted Development Order (the GPDO). The Use Classes Order places most types of use into classes (e.g. retail, business, etc.) and, in general, permission is required to change from one class to another. The Control of Advertisements Regulations set out what forms of advertising do not require consent, known as "Deemed Consent" and what does, known as"Express Consent". Further information on this is also available at www.planningportal.co.uk