Planning enforcement plan

How we prioritise cases

When the enforcement team receives an allegation that a breach of planning control may be occurring, the case will be assigned by a senior officer to a member of the enforcement team. An initial assessment of the nature of the breach is then carried out and the case is categorised according to what level of priority it should be accorded.

All allegations of planning control breaches will be prioritised and investigated thoroughly and accurately. Below are the priorities we have assigned to different types of alleged breaches, and the target times we have set to carry out an initial site visit and send an acknowledgement to the complainant.

Please be aware: These are target timescales for the undertaking of an initial site inspection and will be adhered to as far as reasonably practicable in the prevailing circumstances. Following the initial inspection, a subsequent investigation will take place the length of which will be dependent on the complexities of the individual case.

This prioritisation reflects the perceived urgency and level of harm arising to amenity or to areas or features that benefit from special protection.

At this stage the complainant is informed of the case officer's name and contact details. The named Officer will act as the main point of contact and will advise all parties on the outcome of the case. It should be noted that due to the confidentiality requirements of some of the legal processes involved in Planning Enforcement cases, detailed updates on, for example, the type of enforcement action being taken, cannot be provided to members of the public.

Additionally, borough council members are informed of the receipt of allegations on a weekly basis.

How we investigate alleged breaches

The enforcement case officer will inspect the site within the given timescale to determine if a breach of planning control is occurring. This is an essential part of almost every case to establish the actual circumstances on the ground and will also involve research into the site planning history.

If there is no evidence of a breach occurring at this stage, a brief report is produced by the case officer and passed to a team leader / principle planning officer or the development manager for endorsement.

Should the first inspection prove inconclusive, the enforcement case officer will contact the site owner requesting a meeting on the site, or request further information as might be necessary, so that further investigations can be undertaken.

Whatever the assessment, the complainant will be informed and advised of the next course of action.

What we do if a breach is identified

If a breach of planning control is found an assessment must be made, on a case-by-case basis, as to whether:

• it is or is not appropriate to take any further action at all
• to proceed to try to resolve the breach informally through negotiation
• to seek to invite a retrospective planning application; we will only do this if there is some prospect of permission being granted
• to proceed directly towards formal action such as the service of an enforcement notice

The assessments are made by the enforcement team member, in conjunction with a senior officer, who also endorses any recommendations made.

No formal action

It is not automatically the case that the local planning authority will take any action (whether formal or informal) in the event that a breach is discovered to seek to rectify matters. A judgement must be made in each and every case as to whether any action is expedient. This judgement will involve consideration of the seriousness of the breach, the level and nature of any harm that is being caused, and the proportionality of any contemplated remedial action. If the breach is relatively minor, inconsequential or of a purely technical nature, there will be some instances where no further action is appropriate.

Negotiation

In some cases, it may be possible to bring about a satisfactory resolution through informal action such as negotiations with those responsible. This may, for example, bring about the cessation of the unlawful activity, or reduce any harmful impacts so that they are within acceptable bounds.

Government guidance makes it clear that in all but the most serious cases we should initially seek to have planning breaches remedied through negotiation. In these events, the person carrying out the breach will be sent a letter confirming that the breach should be remedied in a specific timescale, or information should be provided to justify to us that no further action should be taken.

Retrospective planning applications

A local planning authority can invite a retrospective application. In circumstances where they consider that an application is the appropriate way forward to regularise the situation, the owner or occupier of the land should be invited to submit their application (Section 73A of the Town and Country Planning Act 1990) without delay.

We will only do this where it is considered that there is a reasonable prospect of permission being granted. The invitation to submit an application is not, however, meant to imply that permission will necessarily be granted. But it does provide a formal process for consideration of the merits of the case including, importantly, public consultation. In many cases where we follow this course of action, we may eventually conclude that it is appropriate to grant permission subject to conditions that exercise control over the most significant and potentially harmful impacts.

When might it be appropriate to serve an Enforcement Notice?

Wherever possible, we will try to resolve harmful activities through informal action or the planning application process. However, where it is felt that the breach is significantly harmful and is unlikely to be rectified by way of the submission of a planning application we will request that the breach is ceased/remedied within a specified timescale; this is determined on a case-by-case basis and will depend upon the seriousness of the breach and the nature of harm that is being caused. Should the owners fail to meet this request then enforcement action is required.

Enforcement Notices are our main enforcement tool. Government guidance sets out that the power to issue an enforcement notice is discretionary (Section 172 of the Town and Country Planning Act 1990). An enforcement notice should only be issued where we are satisfied that it appears that there has been a breach of planning control and it is expedient to issue a notice, taking into account the provisions of the development plan and any other material considerations.

Enforcement notices are formal legal documents that will require the owner or occupier to take specific steps to remedy the planning breach in a specified time. Once served, the enforcement notice is entered onto the Local Land Charges Register and will remain on the register until the notice is withdrawn or any subsequent appeal is dismissed by the Planning Inspector.  If the notice is not complied with the planning breach will become a criminal offence which can be prosecuted in the Courts. However, the notice may be appealed to an independent, government- appointed Planning Inspector. In such cases the effect of the Enforcement Notice is suspended whilst the appeal is ongoing. Inspectors can decide to uphold the notice, amend it or have it quashed.

Alternatively, if the breach consists of a breach of conditions on an existing permission, a Breach of Conditions Notice can be issued. In this case, a continuing breach could lead to prosecution in the Magistrates' Court. There is no right of appeal against a Breach of Condition Notice.

Where a planning application is invited but none is submitted within a reasonable period, consideration is given to taking further action. Where formal action is contemplated, we will take legal advice before commencing such action.

In addition, the council will, in exercising its duties under Regulation 35 of the Environmental Impact Assessment Regulations 2017, have particular regard to any breaches which have implications for features of developments intended to avoid, prevent, reduce or offset significant adverse effects on the environment that have been approved within the context of an Environmental Statement.

Other possible types of formal action

Planning Contravention Notice (PCN)

This is a legal notice which allows us to bring the breach to the attention of the owner or occupier and requires the alleged offender to provide certain information. A planning contravention notice may be issued under Section 171C of the Town and Country Planning Act 1990 and can be used to do the following:

• allow us to require any information for enforcement purposes about any operations being carried out, any use of or activities being carried out on the land
• can be used to invite its recipient to respond constructively to us about how any suspected breach of planning control may be satisfactorily remedied

The issuing of a PCN is discretionary. We need not serve one before considering whether it is expedient to issue an enforcement notice or to take any other appropriate enforcement action.

It is a criminal offence to give false or misleading information in response to a PCN and in the event the council becomes aware of such an occurrence consideration will be given as to whether prosecution of the offence would be in the public interest.

Section 215 notices

A Local Planning Authority has the power to issue a notice under s215 if the amenity of part of its area is adversely affected by the condition of a piece of land. The notice requires such steps as may be specified for remedying the condition of the land (includes buildings) and provides a minimum of 28 days before it takes effect. There is no right of appeal to a planning inspector, although before the notice takes effect an appeal may be made to the Magistrates Court by those served with the notice or any other person having an interest in the land. The council will consider serving such a notice where clear and demonstrable harm is arising to public amenity as a direct result of the condition of a piece of land.

Stop notices, temporary stop notices and court injunctions

These can be used to bring a quick stop to development where a breach is causing serious or irreparable harm and immediate action is justified. They will therefore generally only be used in the most serious cases. The use of injunctions will be considered in appropriate cases, such as where a listed building is undergoing alterations without consent that affects its special historic and architectural interest or where the council has evidence that a site will be developed without planning permission and in doing so will cause serious harm to particular planning interests.

Prosecution

In most cases the council cannot prosecute until we have taken formal enforcement action through the service of a formal notice, such as an Enforcement Notice or Breach of Conditions Notice, and any period specified in that notice has expired.
Prosecution does not bring about the remedying of a breach; rather it can be seen as the Courts "punishing" the person responsible, usually through a fine. Even though a successful prosecution may not remedy a planning breach on its own it can have an important deterrent effect.

We will not take a prosecution forward without first taking legal advice. As part of that advice, an assessment will be made as to whether there is sufficient evidence to take a prosecution forward and whether it is, in all the circumstances, in the public interest to take a prosecution, in accordance with the Code for Crown Prosecutors.

Additional prosecutions in response to ongoing non-compliance

Further to prosecution action as set out above, the breach of a notice may continue. In such circumstances, the council will consider whether further prosecutions are appropriate and in the public interest in addition to the following possible courses of action.
Proceeds of Crime Act 2002 (POCA)

Confiscation orders under the Proceeds of Crime Act 2002 (POCA) provides power to local authorities to obtain confiscation orders against people who commit planning crimes, to deprive them of the financial benefit they have gained as a result of committing planning crimes.

With a few exceptions, breaching planning control is generally not a criminal offence, but such activities can become criminal where they continue to occur in breach of a valid, effective enforcement notice.
Obtaining a confiscation order under POCA in these circumstances punishes the offender by forfeiting the profits attributable to the planning breaches, and in such circumstances the local authority receives a share of those profits. Using careful judgement and thorough investigation, local authorities can use this tool to target known repeat offenders, creating a real deterrent against breaches of planning law, while at the same time recovering sums to cover costs of any necessary remedial action.

In considering cases of ongoing breaches of effective enforcement notices, the council will consider whether such action is appropriate and proportionate.

Injunctions

The council will, when it is considered to be expedient for any actual or apprehended breach of planning control to be restrained, apply to the High Court or County Court for an injunction to restrain a breach of planning control (section 187B of the Town and Country Planning Act 1990).

Direct action

The council has the power in certain circumstances to make sure an enforcement notice is complied with by carrying out the required steps directly. It can also make the decision to take direct action to remedy a breach of planning control rather than serve a formal notice in the first instance.

In such circumstances, the council can recover all the costs incurred from the owner. Deciding whether or not to pursue direct action will only be done following a detailed review all the relevant circumstances of an individual case and the balancing of all determinative factors. Such action will only be taken if the council is confident that it is proportionate and necessary to do so.

Out of hours