Background context
This document sets out the approach the council will take in relation to breaches of planning control in the borough. Where breaches take place planning law lays down strict requirements which must be followed before the council can enforce against them. These requirements seek to balance the concerns of local people and the rights of owners against the need to secure proper planning control in the borough.
The council understands that breaches of planning control impact on peoples' lives. Consequently, the delivery of effective planning enforcement is an important issue.
With this in mind, this plan sets out how the council's planning enforcement service will seek to address breaches of planning control and prioritise its work. It describes the range of powers available to the council, how the council will decide whether or not to pursue enforcement action and the process of enforcement.
The council's objectives in producing a planning enforcement plan are consistent with the National Planning Policy Framework 2021 (NPPF). The framework states:
"Effective enforcement is important to maintain public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control. They should consider publishing a local enforcement plan to manage enforcement proactively, in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where it is appropriate to do so."
Planning enforcement covers the areas of planning permission, advertisement consent, listed building consent, and conservation area consent and tree preservation orders. National legislation allows some minor and small-scale works to be undertaken without the need for any further consent or approval. These works are known as "permitted development". Any works carried out as permitted development cannot be subject to enforcement action.
This plan is in accordance with the objectives and approaches contained within the council's Corporate enforcement policy and should be read in conjunction with that document.
In dealing with any enforcement issues the council must take into account the council's adopted frameworks and strategies as well as the guidance contained within the National Planning Policy Framework (NPPF) and the associated Planning Practice Guidance (PPG).
Scope of planning enforcement
There are two key principles which underpin the planning enforcement system:
A breach of planning control is not a criminal offence, except for unauthorised works to listed buildings, illegal advertisements, demolition without consent and unauthorised works to trees with tree preservation orders or within conservation areas.
Other than in these cases, a criminal offence only arises when an enforcement notice or other formal notice has been served and has not been complied with upon the expiry of a specified time limit.
There is a common misconception that breaches of planning control are a criminal offence and should automatically attract formal enforcement action. In fact, enforcement action is a discretionary power. It is for each local planning authority to decide the amount of resource to put into enforcement, how to determine when action is necessary and the type of action that is appropriate. In making these decisions the authority should be mindful of maintaining public confidence in the planning system but it should be recognised that in the majority of cases, formal enforcement action should be seen as a last resort.
It is at the council's discretion whether action will be taken - any action proposed must be proportionate to the alleged breach and be in the public interest.
In investigating alleged breaches of planning control formally reported to it, the council will make a reasoned decision whether the alleged breach merits further action. However, formal enforcement action will only be taken where it is fair and reasonable to do so. In making this judgement, we will assess all of the circumstances of the case and make reference to our adopted planning policies. In addition we must also consider central government enforcement policy and guidance which is currently set out in the National Planning Policy Framework (NPPF) and the Planning Practice Guidance (PPG) which specifically references when Authorities should take enforcement action.
Importantly, the NPPF sets out that 'local planning authorities should act proportionately in responding to suspected breaches of planning control'.
Formal enforcement action may only be taken in cases where:
- there is a breach of planning control and
- it is expedient to take such action
What does expedient mean?
In general terms, this means where an unauthorised development is causing serious harm, rather than it being a minor or technical breach of planning control.
The matter of "expediency" covers a range of matters upon which a judgement needs to be based, a key issue is whether the breach would unacceptably affect public amenity or use of land that should be protected in the public interest.
Any enforcement action should be proportionate to the breach, so for example, it would be inappropriate to take formal action against a trivial or technical breach.
There will be cases where there is a breach of planning legislation, but the breach or harm is so minor that action cannot be justified, in other words it is not expedient or in the public interest to pursue the case.
Examples of harm resulting from a breach of planning control could concern:
- harm to amenity
- highway safety issues for example danger from increased traffic flows
- noise nuisance
- loss of daylight or privacy
This is not an exhaustive list of 'harm' but indicates that there must be recognisable planning harm.
Such harm would not include, for example:
- loss of value to a neighbouring property
- competition to another business
- an extension to a building that is slightly larger than permitted development rights allow but does not create any comparative harm
- private rights to a view
As such, the planning enforcement team will not investigate the following:
- neighbour disputes or other civil issues including boundary disputes or enforcement of covenants. In these matters, complainants need to contact their solicitor or local Citizens Advice office
- the use of or development on adopted highways, pavements or highway grass verges. These matters should be addressed to Kent County Council as the Highways Authority
- dangerous structures. These matters should be addressed to the council's building control team
- fly-tipping, litter and fly posting. These should be addressed to the council's waste and street scene service
The general approach to enforcement - guiding principles
Government guidance on enforcement focuses not just on the impact of any breach on the complainant but on the rights of the owner or occupier where the alleged breach is occurring. With this in mind, the Council is committed to acting in a fair and consistent manner and has adopted this enforcement plan as part of this commitment. When exercising its enforcement functions the council will act in a way that is:
- consistent and fair
We will look at past cases and try to take a similar approach, for consistency, where this seems fair and reasonable. Cases will be investigated in accordance with the priorities set out within the plan. - transparent and accountable
Members, residents, existing and potential local businesses, complainants, alleged offenders and council staff should understand how we provide the service and the principles that guide it. We will provide an easy-to-access service, where the procedures, level of service provided and the rights of appeal for the alleged offenders are clearly explained and easy to understand. - proportionate and targeted
Any proposed action is in keeping with the scale of the alleged breach and the amount of harm caused. In each case we will decide on the most appropriate course of action to follow. Under the law we are only allowed to take enforcement action if it is expedient to do so having taken into account government guidance, our own development plan policies and the specific circumstances of the case.