Local planning enforcement plan

Appendix 1: enforcement toolkit

This appendix provides a summary of the various tools available to deal with alleged breaches of planning control. We must assess, in each case, which power (or combination of powers) is best suited to dealing with any particular anticipated or apprehended, or actual, breach of control to achieve a satisfactory, lasting and cost effective remedy, having regard to the circumstances of the case.

It should also be noted that the type of enforcement action taken should be commensurate and proportionate with the breach of planning to which it relates.

Obtaining information

There are three 'requisition' powers for planning enforcement purposes:

  • section 330 of the Town and Country Planning Act 1990 (as amended)
  • section 16 of the Local Government (Miscellaneous Provisions) Act 1976
  • section 171C of the Town and Country Planning Act 1990 (as amended)

Section 330 of the Town and Country Planning Act 1990 (as amended): request for information (RFI)

This power may be used in order to obtain relevant information at an early stage of the enforcement process. It involves serving a notice on either the occupier of the premises or the person receiving rent for the premises. This form of notice may also be used for investigating enforcement under the Planning (Listed Buildings and Conservation Areas) Act 1990.

Section 16 of Local Government (Miscellaneous Provisions) Act 1976

These provisions are primarily intended to enable an authority to establish the facts about ownership of land.

Section 171C of the Town and Country Planning Act 1990 (as amended): planning contravention notice (PCN)

The main method for us to obtain information about activities on land, when it appears to us that a breach of planning control has occurred, is to serve a planning contravention notice (PCN). A PCN takes the form of a series of questions relating to the suspected breach of planning control. It is an offence to fail to respond to the notice within 21 days, or to make false or misleading statements in reply.

Our intention when issuing a PCN is also to send a clear warning that further formal action is being considered. Failure to provide the information required by a PCN can result in a fine of up to £1,000 whilst provide false information can result in a fine of up to £5,000.

This notice, however, is not available for use in respect of suspected works to listed buildings or protected trees.

Powers of entry for enforcement purposes: sections 178(1) and 219 Town and Country Planning Act 1990

In addition to the investigative powers outlined above, case officers also have powers to enter land, specifically for enforcement purposes. This right is limited to what is regarded as necessary, in the particular circumstances, for effective enforcement of planning control. A notice period of at least 24 hours is required before entry can be demanded to a dwelling house. Prior notice is not required for access to domestic outbuildings or garden land, industrial, commercial or farmland.

A new code of practice introduced in April 2015 recommends that contact should be made with owners/occupiers before exercising powers of entry, unless it is impracticable to do so or would defeat the purpose of the inspection. The full version of the code can be found on the Gov.UK web site.

Powers of entry also exist in accordance with a warrant, and procedures in respect of those matters can also be found within the code of practice.

Default powers and direct action: sections 178(1) and 219 Town & Country Planning Act 1990

We may enter land and carry out required works to secure compliance when an enforcement notice is in effect but has not been complied with. There is no requirement to give notice to either the owner or occupier of the land, although it is good practice to do so. In some circumstances we can enter land to carry out remedial works and recover costs incurred from the land owner. Such expenses, until recovered, become a charge on the land, binding on the successive owner.

Additional surveilance methods

Currently, we do not use evidence gathered through CCTV techniques, including street-based cameras, body cameras or drone footage. Legislation in these areas through is subject to change and importantly, the cost of acquiring and utilising such resources is also changing.

The use of such evidence gathering techniques will therefore be kept under review and future reviews of this plan may provide further information on how we use such sources of information.

The use of CCTV filming will be reviewed through our separate CCTV Policy.

Enforcement measures

This section refers to types of formal enforcement action which may be taken by us to require a particular use or development to cease or for works to be removed or modified.

Where it is considered enforcement action is appropriate, we have a range of legal powers it can utilise. Some of the more stringent measures have counter balances which a person who has been served with a notice can use to seek redress if they believe we have either not examined the details of the case fully or is in exceedance of its powers.

These rights may result in costs awards being made against us if it were to be found to have pursued enforcement action with a weak case, or even flawed case, that in turn would impact on our wider budget.

Breach of condition notice (BCN): section 187A Town and Country Planning Act 1990

Used as an alternative to an enforcement notice but only in circumstances where there has been a failure to comply with conditions attached to a planning permission. The BCN must specify details of the breach and the steps required to secure compliance. A minimum period of 28 days must be given for compliance. There is no right of appeal to the Secretary of State. It does not apply to breaches of conditions attached to listed building consent or advertisement consent. Failure to comply with a BCN can result in a fine of up to £1,000.

Enforcement notice: section 172 Town and Country Planning Act 1990

An enforcement notice can only be served when we are satisfied that there has been a breach of planning control and when it is considered expedient to do so. An enforcement notice requires specific steps to be taken which may include a use to cease or for a structure to be removed. It must also specify the period for compliance.

An enforcement notice must contain an explanation of the reasons it is being issued. The reasons should be carefully considered and be specific to the case. Failure to comply with an enforcement notice is a criminal offence.

The recipient of an enforcement notice has a right to appeal to the Secretary of State. Such an appeal will suspend the effect of the notice until the appeal is determined. If an appeal is lodged all complainants and interested parties will be advised of the appeal details and how to make representations. Failure to comply with an Enforcement Notice can result in a fine of up to £20,000.

Listed building enforcement notice: section 7 Planning (Listed Buildings and Conservation Areas) Act 1990

We may serve a listed building enforcement notice if unauthorised works have been or are being carried out to a listed building. Like an enforcement notice, the recipient of this type of notice has a right to appeal to the Secretary of State.

Stop notice: section 183 Town and Country Planning Act 1990

When the effects of unauthorised activity are seriously detrimental, a stop notice may be served to ensure that an activity does not continue if an appeal is lodged against the enforcement notice. A stop notice can only be served where an enforcement notice has been issued. A stop notice can relate to any, or all, of the ses or activities specified in the enforcement notice. It does not apply to works to a listed building.

It is an offence to contravene a stop notice. Whilst there is no right of appeal against a stop notice, the validity of a notice or the decision to issue the notice can be challenged in the courts by an application for a judicial review. Failure to comply with a stop notice can result in a fine of up to £20,000.

Temporary stop notice: Section 171E Town and Country Planning Act 1990

Where we consider that a breach of planning control should stop immediately we may serve a temporary stop notice. Such a notice expires 28 days after it has been served. During this period, we must decide whether it is appropriate to take further enforcement action. Once a temporary stop notice has been served it is not possible to serve further temporary stop notices for the same breach of planning control.

There are restrictions on the use of temporary stop notices, for example, such a notice cannot prohibit the use of a building as a dwelling house and may not prevent the continuance of an activity which had been carried out for a period of four years. Failure to comply with a temporary stop notice can result in a fine of up to £20,000.

Discontinuance notice

The Town and Country Planning (Control of Advertisement) regulations enable us to take discontinuance action against any advertisement, which normally has the benefit of any of the categories of deemed consent.

A discontinuance notice may only be served if the planning authority is satisfied it is necessary to do so to remedy a substantial injury to the amenity of the locality or a danger to members of the public. There is a right of appeal against a discontinuance notice.

Section 215 notices/untidy land notice: Town and Country Planning Act 1990

Under section 215 of the Town and Country Planning Act, we may serve a notice on the owner or occupier of the land, if it appears that the amenity of a part of their area, or an adjoining area is adversely affected by the condition of the land. A section 215 notice may deal with 'buildings' as well as land. There is an appeal provision, where the recipient may challenge the notice in the Magistrates' Court.

Dilapidated buildings may also be open to action under the Building Act 1984 and these cases will be referred to Building Control immediately following a site inspection. These are frequently also vacant, and can quickly generate a lot of concern for neighbours. The issues vary a lot between different sites, and we need to decide whether or not the land and/or buildings are detrimental to the amenity of the area (as this is the test set out in the legislation).

High priority cases may, for example, be where:

  • a significant part of the land or the exterior of the building is seriously visually damaging to the area (for example, the roof and the façade may be damaged or missing, or demolition rubble left in place)

and

  • the land is in a prominent location

It will not normally be possible to take action simply because the building is not secure or because of the presence of graffiti. Nor will it be possible to take action where the problem relates to the accumulation of a small amount of materials that may attract vermin. In these cases other parts of the council may be able to act. Where a referral is considered necessary, this will be done as soon as possible.

Completion notice: section 94 Town and Country Planning Act 1990

A completion notice may be served if we are of the opinion that development (which has started within the statutory 3-year period) will not be completed within a reasonable period. For this type of notice, the period for compliance has to be a minimum of 12 months. We must also refer the notice to the Secretary of State for confirmation. There is a right of appeal against a completion notice.

Injunction: section 187B Town and Country Planning Act 1990

We can apply to the High Court or County Court for an injunction to restrain an actual or apprehended breach of planning control. An injunction can be sought whether or not other enforcement action has been taken and when the identity of the person responsible for the breach is unknown.

When a planning obligation (section 106 agreement) has not been complied with, we may apply for an injunction to secure compliance with the legal agreement. We may also apply for an injunction to restrain a breach or apprehended breach of tree preservation or listed building control.

The decision whether to grant an injunction is always in the absolute discretion of the court. The court will need to be satisfied in the case of every injunction application that enforcement action in this form is proportionate.

Trees (conservation areas/preservation orders): sections 210 and 211 Town and Country Planning Act 1990

In the case of protected trees, it is a criminal offence to:

  • cut down, uproot or wilfully destroy a tree protected by a tree preservation order (TPO) or
  • wilfully damage, top or lop a tree protected by a tree preservation order in a way that is likely to destroy it

If any of these works are carried out, we must decide whether or not to prosecute. We may issue a tree replacement notice requiring the owner to plant a tree or trees of appropriate size and species if a tree has been removed in contravention of a TPO or if a protected tree has been removed because it was dead or dangerous.

The cutting down, topping, lopping, uprooting, wilful damage, or wilful destruction of trees within a conservation area is also a criminal offence. A tree replacement notice can also be served in respect of the unauthorised removal of tree(s) in a conservation area. An appeal can be lodged against a tree replacement notice.

Hedgerow replacement notice

It is a criminal offence to intentionally or recklessly uproot or otherwise destroy a hedge protected by the Hedgerows Regulations 1997, which includes hedgerows on or adjacent to agricultural, equine or common land etc. If any of these works are carried out, we must decide whether or not to prosecute.

We may issue a hedgerow replacement notice requiring the owner to replant a hedgerow of appropriate size and species if a hedgerow has been removed in contravention of these regulations. An appeal can be lodged against a hedgerow replacement notice.

High hedge remedial notice

We may issue a high hedge remedial notice if an evergreen/semi evergreen hedge is found to be a 'nuisance' when assessed in accordance with the Anti-Social Behaviour Act 2003, part 8, High Hedges. If an owner or occupier of the land where the hedge is located fails to comply with the notice the owner or occupier will be guilty of an offence. An appeal can be lodged against a high hedge remedial notice.

Legal agreements

Legal agreements under section 106 of the Town and Country Planning Act can be used to restrict development or the use of land. They may also be used to require specific operations or activities to be carried out. The advantage of this approach is that the legal agreement goes with the land and not an individual and therefore remains in perpetuity.

Should a site be sold on, the requirements of the legal notice have to be taken on by the new owners. The requirements of the notice also apply is the land is rented or leased.

Section 225A: removal notices

Section 225A allows us to remove, and then dispose of, any display structure in their area which, in our opinion, is used for the display of advertisements in contravention of the regulations. This power is subject to us first serving a removal notice upon the persons who appear to be responsible for the structure. There is a right of appeal against a removal notice to the Magistrates' Court.

In 2014 new powers were introduced for councils through the Anti-Social Behaviour, Crime and Policing Act 2014. These powers can be used to deal with planning enforcement enquires relating to the following:

  • illegal hoardings
  • fly-posting
  • graffiti
  • unauthorised advertisements alongside highways

Community protection notice (CPN): section 43 Anti-social Behaviour, Crime and Policing Act 2014

This can be used where the behaviour of a person, business or organisation is considered to have a detrimental effect on the quality of life of those in the locality. The behaviour has to be of a persistent or continuing nature. This form of action can be used as an alternative approach to section 215 notices referred to above. There is a right of appeal and the failure to comply with a CPN is a criminal offence.

In April 2012 new powers were introduced through the Localism Act 2010 which includes the following requirements:

  • someone to stop doing specified things
  • someone to do specified things
  • someone to take reasonable steps to achieve specified results

Due to their wide scope, CPNs can be issued by a number of departments in the councils and each case will be determined on the particular circumstances.

Decline to determine a retrospective action: section 70C Town and Country Planning Act 1990:

We may decline to determine a retrospective application for development which is the subject of an enforcement notice served after 6 April 2012.

Planning enforcement order (PEO): section 124 Localism Act 2011 and Section 171B Town and Country Planning Act 1990

Where there has been deliberate concealment of a breach of planning control, we may apply to the Magistrates' Court for a planning enforcement order. Once granted we can serve an enforcement notice. The 4 year and 10 year periods for immunity will not apply in cases of concealed breach. An application for a PEO must be made within 6 months of us becoming aware of the breach and having sufficient information to justify enforcement action being taken.

Advertisements: section 224 Town and Country Planning (Control of Advertisements)(England) Regulations 2007

It is an offence to display an advertisement in contravention of the above. When deciding on action, we will consider factors such as amenity or public safety.