Local planning enforcement plan
Planning enforcement options
An objective of planning enforcement is resolving problems by negotiation and persuasion. However, there are a number of cases which require formal enforcement action to be taken.
Where it is deemed necessary to take such action, the parties will be advised of the action to be taken. The owner/operator affected by the notice will also be advised of any rights of appeal and the penalties for non-compliance.
The details and definitions of the main types of action are detailed in Appendix 1. In some cases, officers can act under delegated powers and in others the case will need to be reported to the Planning Committee by the Head of Planning and development for authorisation of enforcement action.
Formal enforcement action
The type of enforcement action to be pursued will be dependent on the circumstances of the case. The type of action pursued must also be proportionate to the nature of the breach of planning control. There are many different forms of enforcement action which are available to us and these are summarised below in Appendix 1.
In considering whether to pursue enforcement action, we must also take into account the Human Rights Act 1998 and the articles contained therein with particular reference to:
- the right to a fair trial
- the right to a private family life
- the protection of property
We also have a duty to work towards the elimination of unlawful discrimination and to promote equality of opportunity and good relations between persons of protected characteristics in the carrying out of their functions, in accordance with the Equality Act 2010.
Once the decision has been made to pursue formal enforcement action, the relevant notice will be issued by us. When a notice has been issued, the relevant enforcement public register is updated as a matter of course. If a notice is subsequently complied with the register is further updated. An electronic version of the enforcement register can be viewed on our website and this is updated on a quarterly basis. Enforcement notices once served, stay with the land in perpetuity and do show up on local land charge searches.
Depending on the type of enforcement action pursued, there are various rights of appeal, which may suspend the effect of a notice until the appeal is heard. Further information on this is contained within Appendix 1.
Formal notices, give the person responsible for the breach, a specified time limit in which to remedy the breach or provide relevant information for consideration in the investigation.
Once this time period has expired the case officer will check whether the notice has been complied with. Then depending on the nature of the notice, this will shape how the investigation proceeds. For example, if the notice is a PCN, the information within it may confirm a planning breach and an enforcement notice will then be served and the case continues.
If the planning breach is resolved, no further action will be taken by us and the file will be closed.
If, however, the notice has not been complied with, the case officer, liaising with our solicitor, and having regard to the constitution consider whether or not to prosecute as this is a criminal offence. We could utilise stop notices or temporary stop notices to cease a use or building operation. In some cases, such as section 215 notices, we may take direct action, also known as default action to secure compliance. These forms of action are explained in more detail in Appendix 1.
Failure to comply with any requirement of a statutory notice is usually a criminal offence and we will normally take legal action in such cases.
Where breaches of planning control lead to criminal offences being heard in court, officers will ensure that all relevant evidence is put before the Court and that the disclosure obligations are complied with. The decision to prosecute will also take account of the evidential and public interest tests.
All prosecution action will be taken in accordance with the Police and Criminal Evidence Act 1984 as amended (PACE).
Where it is considered in the public interest to do so, we are likely to make a costs application to the court in order to recover its expenses in pursuing prosecution cases.
In the event of legal proceedings, a successful outcome may depend upon the willingness of complainants to appear as witnesses at court. Whilst during the investigation period the complainant's details are kept confidentially, in order to act as a witness this anonymity is waivered.
Where a criminal offence has occurred, and the Defendant(s) has been found guilty, we may request that the court makes a confiscation order under the Proceeds of Crime Act 2002. The confiscation order will relate to any financial benefit arising from a criminal activity.
There are a small number of cases where statutory notices are issued and not complied with and successful legal proceedings fail to resolve the breach. Similarly, there are cases where prosecution will clearly not be effective.
Provision is made for us to take direct action in certain circumstances, to enter the land and remedy the problem (Town and Country Planning Act 1990, under section 178 and section 219).
Direct action will be only be taken after full consultation has been taken with all relevant parties (and this will depend on the nature of the case) and only if authorisation has been given by the planning committee. Reports to the committee on such matters will be considered in private session in accordance with the Local Government Act 1972 to ensure that the case is not prejudiced.
If direct action is taken, the cost to us can be considerable. A charge in favour of us for the cost of the action will be registered on the land to ensure that money raised by any future sale will be used to recoup our costs. Other actions to recover the money will be considered, where appropriate.