A guide to planning enforcement
Introduction
Planning laws are intended to control the development and use of land and buildings in the public interest. They are not however intended to protect the private interests of one person against the activities of another.
Enforcement is an integral part of the Development Control process and the powers to investigate and take action against breaches of planning control are contained within the following principal Acts of Parliament.
- Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1991)
- Planning (Listed Buildings and Conservation Areas) Act 1990 (as amended by the Planning and Compensation Act 1991)
- Planning and Compulsory Purchase Act 2004
Expediency to take action
Formal Enforcement action is a discretionary power and in considering whether it is expedient to take enforcement action the Local Planning Authority will have due regard to primary legislation, government guidelines, local policy and all other material considerations. Each case will be assessed on its merits and take account of the wider public interest and whether serious harm will be caused to public amenity.
In determining the expediency of taking enforcement action against breaches of planning control the authority will also have regard for the following documents.
- Planning Policy Guidance Note No.18 – Enforcing Planning Control (published December 1991.)
- Enforcing Planning Control: Good Practice Guide (1997)
- Enforcing Planning Control: Legislative Provisions and Procedural Requirements (Circular 10/97).
The integrity of the Development Control process is dependent upon the ability and readiness of the Local Planning Authority to take enforcement action where circumstances dictate. However any formal action taken must be proportionate and remain focussed on legitimate planning considerations.
The overall objective of any enforcement action is to protect public amenity. Harm to public amenity does not include such issues as loss of value to neighbouring properties, competition to another business, the loss of a view.
It may be possible to address such matters by way of civil action. Such action does not involve the Council.
Complaints
Any person is entitled to complain to the Local Planning Authority if they believe that a breach of planning control has occurred.
Confidentiality
All complaints will be dealt with in confidence and details of complainants will not ordinarily be made known. However having regard to the nature of some complaints it may be necessary to rely on the evidence of some complainants’ in order to take action. Complainants will therefore have to consider whether they are willing to actively assist the Council and be witness in formal proceedings, including court, if this is ultimately required.
Information to be provided
The exact location of the alleged breach should be given and a description of the problem in as much detail as possible. Complainant details should be provided in order that contact can be made to clarify issues connected with the complaint and also enabling the planning enforcement team to provide details of progress in the case.
How to make a complaint
The authority will accept complaints by letter, telephone or e-mail. It is important when making a complaint by way of a telephone call or e-mail to be able to provide an accurate location at which the breach is believed to be taking place and also provide as much detailed information as possible in relation to the breach. Complainant contact details are also required to convey information on progress in the case.
Once the complaint has been logged, a site visit conducted and a decision made that a breach has taken place, complainants may be requested to provide further information in relation to the continued breach, for example, information in relation to times and dates of further activity at the site, the presence of any vehicles etc.
The investigation process
The complainant
Once an enforcement complaint has been accepted by the Local Planning Authority and logged as such, the complainant will be notified by letter, usually within 3 working days. The letter will confirm that the issue raised has been accepted for investigation. The confirmation letter will also provide the complainant with a case reference number and indicate to them the name of the enforcement officer who will be responsible for pursuing the case.
An initial site visit will take place and the situation assessed. The aim of the Local Planning Authority is to conduct an initial site visit within 5 working days.
The initial site visit will allow the enforcement officer to collate any necessary information and acquire evidence to determine:
- whether there is a breach of planning control
- the degree of harm caused, or likely to be caused by any such breach.
If an investigation reveals there to be a breach at the site – ‘unauthorised development’, an assessment of the planning implications of the case will be made. If it is considered that unconditional planning permission is likely to be granted or permission is likely to be granted with conditions, the person responsible for the land or structure will be invited to make an application for retrospective planning permission.
Should no retrospective planning application be submitted, the Local Planning Authority may commence enforcement action where the breach of planning control is causing sufficient harm to justify it.
In circumstances where unauthorised development is not considered to be appropriate, negotiations will commence with the owner of the land or property, to address the situation.
Complainants and members of the public should be aware that in circumstances where the Local Planning Authority find that a breach of planning control is apparent, discussions will be held with the site owner with a view to negotiating a satisfactory solution to the problem before any formal proceedings are contemplated.
It is a responsibility of the Local Planning Authority to seek to achieve satisfactory resolutions to breaches without recourse to formal action if possible. Reasonable time must be given to allow this to take place.
Formal action
Where negotiations fail to reach a satisfactory conclusion, in exercising its discretionary powers, the Local Planning Authority may deem that formal action is appropriate.
When an Enforcement Notice is served the notice will require certain steps to be taken to put things right and provide a date by which these steps will need to be completed. Timescales given for compliance have to be reasonable having regard to the nature of the work required to comply with a notice.
If the Enforcement Notice is complied with the matter for the time being will be closed. However, the Enforcement Notice remains in force and any subsequent transgression and repeat of the breach would be open to further enforcement action.
A Local Planning Authority is entitled, if it considers it appropriate, to instigate court proceedings for any non – compliance with the requirements of an Enforcement Notice or a repeated breach following compliance of any such notice.
Persons on whom an Enforcement Notice has been served will ordinarily have a right of appeal to the Planning Inspectorate.
Timescale for resolving complaints
The investigation of enforcement cases can be a lengthy and complex process dependent upon their nature. Cases vary considerably in their complexity and so too the time taken to resolve them. As a consequence it is not possible to offer a standard time for resolving such matters.
As a complainant you will be informed of any significant progress in a case, as and when this occurs.
In pursuit of the Council’s aim of conducting an initial site visit within 5 working days, the enforcement officer will be best placed to determine the level of harm being caused in each particular case and will be able to prioritise the case, having regard to overall caseload and the resources available. Cases will be prioritised in order to address those issues causing the greatest degree of harm.
Matters causing potential permanent damage to the environment such as unauthorised work affecting the character of a listed building will demand a more immediate response and follow up action than, for example, circumstances where a boundary fence has been in situ for several months and exceeds the height allowed without requiring planning permission.
If a complaint is made against you
If you are contacted about an alleged breach of planning control you are entitled to know the nature of the allegation but not the identity of the person making the complaint.
You will have the opportunity to explain your side of the case, so that the enforcement officer investigating can assess your part in the breach and your liability to put things right.
Your co-operation will be sought to correct the breach by its removal or by modifying the unauthorised development, or by stopping the unauthorised activity. A reasonable period, having regard to the circumstances, will be given for this to happen.
In some circumstances you may be invited to submit a retrospective planning application if it is considered that it is likely permission will be granted.
If you are subsequently served with an Enforcement Notice, that notice will provide you with the details of the breach, the reasons for taking the action and the steps required to overcome the problem and the timescale for compliance.
Failure to comply with the requirements of an Enforcement Notice is an offence and the Local Planning Authority is entitled to instigate court proceedings. It is not the function of the courts to determine the merit or otherwise of the Local Planning Authority’s actions in issuing an Enforcement Notice in respect of breaches of planning control. The court simply needs to determine whether an Enforcement Notice has been complied with.
Useful Information
Correspondence for Preston City Council should be sent to:
Development Control
(Enforcement)
Development Directorate
Lancastria House
77-79 Lancaster Road
Preston
PR1 2RH
Telephone numbers: 01772 906557 or 01772 906586
E-mail: devcon@preston.gov.uk