Your guide to planning enforcement and its powers

What is planning enforcement?

The Council has a duty to investigate complaints about development, including building and engineering works and changes of use, that may have been carried out without permission or consent. 

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In the vast majority of cases planning permission is required before a new use begins or activities are carried out.  However, some minor works or changes of use do not need permission but this should be clarified beforehand to avoid any confusion. 

Where this control is breached, the enforcement team will investigate the matter.  It is important, however, to realise that enforcement action is taken at the discretion of the Council.

Planning enforcement is a very complex area.  The legal processes involved are often lengthy and complicated and an ‘instant response’ or resolution cannot be guaranteed. 

In dealing with breaches there is a need to strike a balance between protecting the environment, protecting the amenities of neighbours and conserving historic building and areas, whilst at the same time enabling the freedom of the owners to use or alter their property as they wish, even though it may initially have been unauthorised.

The main breaches of planning control include:

  • Building, or engineering work and the change of use of land without a planning permission
  • Unauthorised work to trees protected by a tree preservation order or in a conservation area
  • Breach of conditions attached to planning permissions or the terms of a Section 106 obligation
  • Non-compliance with approved plans attached to planning permissions
  • Unauthorised advertisements or signs
  • Unauthorised change of use of land/buildings
  • Land or buildings in such poor condition that it adversely affects the amenity of the area
  • Unauthorised works to a listed building
  • Unauthorised demolition work in a conservation area
  • Unauthorised deposit of waste or mineral extraction

Situations that do not involve a breach of planning control such as land ownership disputes and breaches of a covenant attached to deeds will not be investigated as these are civil issues.

We will operate our enforcement activities within Government guidelines and in accordance with Council policy.  This means that:

  • We must decide whether the breach of planning control unacceptably affects amenity
  • Action will not be taken just because development has started without planning permission
  • We do not always have to take action but the particular circumstances of the case will always be considered
  • It is not normal to take formal action against a minor breach of control that causes no real harm

The Council has established the following objectives for the planning enforcement strategy:

  • To remedy the undesirable effects of unauthorised development
  • To strike a balance between protecting amenity/environment and other interests of acknowledged importance throughout the authority’s area, and enabling acceptable development to take place, even though it may initially have been unauthorised
  • To ensure that the credibility of the planning system is not undermined
  • To carry out all enforcement duties in accordance with the principles of the Enforcement Concordat, particularly with respect to openness, helpfulness, proportionality and consistency
  • To be both pro-active in regard to the monitoring of development to ensure compliance with conditions imposed on planning permissions and also reactive in the investigation of complaints
  • To work with other agencies and organisations, both internally and externally to deliver the acceptable outcomes

The main legislation governing the enforcement of planning control is contained in the Town and Country Planning Act 1990.  Under the Act the Council has powers:

  • to enter land to make necessary inspections
  • to require owners and occupiers to provide information about the ownership and use of land and buildings
  • to serve enforcement and other notices on landowners and persons responsible to require breaches of planning control to stop or be improved or both

It is recognised that the integrity of the planning process depends upon our commitment to take effective action against unauthorised development which is not in the public interest.  The timely instigation of enforcement action, where necessary, is seen as being vital to this process.

The National Planning Policy Framework (NPPF) and the supporting National Planning Practice Guidance sets out advice on how to deal with breaches of planning control. It states that Councils should act proportionately in responding to suspected breaches of planning control.

If formal enforcement action has to be considered, the crucial issue is whether the breach of planning control unacceptably affects public amenity or the existing use of land and buildings that merit protection in the public interest.  If yes, then it is expedient to take enforcement action. 

In other words we should take action as the harm caused needs to be addressed.  However, enforcement action should not be taken against trivial or technical breaches of planning control that cause no harm to the surrounding neighbourhood. 

Planning enforcement issues are usually capable of resolution without resorting to formal enforcement action or prosecution. 

However, if negotiation fails to resolve the problem, the enforcement team has a number of tools it can use to obtain information or remedy the breach which can include:

Planning Contravention Notices (PCN) - This notice seeks information about suspected breach(es) of planning control.

Enforcement Notices - This notice is issued against breaches of planning control and sets out steps that the recipient should take to remedy the breach and a timetable for doing so.

Breach of Condition Notices (BCN) - These notices can be served where a condition attached to a planning permission is being breached.  A BCN will set out the steps the recipient should take to remedy the breach of condition and a timetable for doing so.

Section 215 Notices - These notices can require a landowner to tidy up land which the Council considers harms the amenity of the area.  The notice again will set out steps that the owner has to take and a timetable.

Listed Building Enforcement Notice - This notice is similar to an Enforcement Notice but used where works have been carried out to a listed building without the benefit of listed building consent or in contravention of a condition of such a consent.

Stop Notice – This notice is only served in conjunction with an Enforcement Notice in exceptional circumstances where it is essential that activities cease to safeguard amenity or public safety or to prevent serious or irreversible harm to the environment.

Temporary Stop Notice - Similar to the above, this notice can be served in exceptional circumstances where it is essential that activities immediately cease, for a period of up to 28 days this period allows the Council to make further investigations and consider whether to take further action.

Prosecution - Prosecutions are normally brought in the Magistrates Court against the failure to comply with one of the notices listed above along with the unauthorised display of advertisements, unauthorised works to a protected tree or unauthorised works to a listed building but some serious cases may be brought in, or referred to the Crown Court.  Failure to respond or comply with the requirements of the notices above will result in prosecutions being brought.

Injunction - An injunction is only sought, in the County or High Court, in the most exceptional investigations and used as a last resort if the Council considers it necessary to restrain an actual or anticipated breach of planning control.  The contravention of an injunction is contempt of Court and the Court can levy an unlimited fine or impose a custodial sentence.

Appeals - An appeal may be lodged with the Planning Inspectorate against an enforcement notice before it comes into effect on one of seven specified grounds.  If an appeal is made the requirements of the notice are suspended until the appeal is heard.  Appeals against enforcement notices may sometimes take up to a year to be heard.

If an appeal is allowed, no further action can be taken by the Council in regard to that breach.  If an appeal is dismissed, legal action can only be taken if an individual then fails to comply with the requirements of an enforcement notice.

There are time limits for taking enforcement action:

  • four years after substantial completion in relation to the erection of buildings and change of use of buildings to residential use; and
  • ten years for most changes of use of land or buildings and breach of condition

Report a breach of planning control online

To assist the Council in providing an early resolution to the issues raised, it is important that you provide as much information as possible on the complaint form about the alleged breach. We will require:

  • Your name, address, telephone number and e-mail address (if applicable)
  • The exact address/location of the site where the alleged breach is
  • The name and address of the person(s)/company/developer carrying out the breach (if known)
  • The nature of the complaint – what do you perceive as the breach of planning control?
  • When the problem started
  • What problem(s)/harm the development is causing to you, or to the environment
  • Whether the problems(s)/harm is continuing or likely to get worse
  • Whether you wish to be notified of the outcome of the investigation
  • What you would like the Council to do

We retain the right to investigate any matters if this is felt to be in the public interest.

Anonymous complaints

To avoid malicious complaints, anonymous allegations of breaches of planning control are not normally investigated but will be recorded. 

You should, however, be aware that if you give your name, address, or any other details, they will be treated in the strictest confidence so far as legislation permits. 

Should you still wish to remain anonymous, the Council encourages you to refer the matter to either your Divisional Member or to your Local Council representative.

Confidentiality

Legislation requires that the name and address of the person making the complaint, or any other contact details, will not be disclosed. However, if you have supplied evidence which is vital to the investigation, you may be asked to give that evidence at a hearing but only when you are sure that you want to do so.

Most complaints are dealt with without the need for formal action, so in most cases confidentiality can be maintained. 

However, you should remember that the person whose activities you have complained of may think he/she knows that you have made a complaint:

  • because of things you have said to him/her
  • someone else informs them what you have told them
  • the nature of the complaint makes it obvious that you are the person that has complained

If the activity you have complained about becomes the subject of a planning application, you amongst others will be invited to make your views on the application in writing.  At this stage, written comments we receive on a valid planning application cannot be treated in confidence but the initial complaint to the enforcement team will remain private. 

The Council also has a duty to protect the privacy of the person who is the subject of the complaint as we do for you as a complainant under the General Data Protection Regulations. Therefore, we are unable to provide you with any updates during the course of our investigation. Such information is also likely to be exempt from release under Freedom of Information.

Priority

The enforcement section will prioritise your issue according to the seriousness of the alleged breach of planning control. 

Those of a more serious nature that may involve irreparable harm to public health and safety or the environment, are categorised as high priority.

What happens to my complaint and how long does it take?

In the first instance if it appears that the matter might not be a breach of planning control or that we might be able to advise you about a technical breach without a full investigation, we will contact you by telephone to inform you or to clarify any particular points.

If an investigation is necessary it is likely that we would visit the site and speak with the person responsible for the works. 

Investigations can take a considerable amount of time. 

It might be necessary to serve formal questionnaires to establish the facts/history of the matter.  In some cases information might need to be supplied by other people or we might need to consult with other agencies or services within the Council.  This can all take time. 

It takes an average of 9 weeks to conclude an investigation where no breach of planning control has occurred.

If a breach of planning control has occurred, it can take an average of between 16 – 30 weeks to conclude an investigation, depending on what type of action is considered necessary.

There are a number of possible outcomes to a case where a breach of planning control has been found, the main outcomes are :

Retrospective planning application

The Law allows for planning applications to be submitted retrospectively. 

If it is considered that the development could be acceptable a planning application can be invited. 

However, it is important to remember that the Council cannot make someone submit an application, therefore, if an application is invited but not submitted, we must decide whether the development causes planning harm and if it doesn‘t, no action should be taken.

Certificate of Lawfulness/Immune from enforcement action

The Law states that development can become lawful if it has been in situ for a period of time - 4 years or 10 years depending on the what type of development has occurred. 

The developer may decide to submit an application for a Certificate of Lawfulness to prove that the development has existed for the required period of time, but again, the Council cannot make them do so. 

If an application is not submitted but we have evidence that the development has existed for the required period of time, the matter will be closed because the development is immune from enforcement action. 

No further action (not expedient)

If the development is acceptable in planning terms (no harm is caused) the Council cannot take formal action against it.  

The officer will consider the development against local and national planning policies and will assess whether the development causes harm; if it doesn‘t the case will be closed and no further action will be taken.  This is in accordance with the government guidance. 

Negotiate remedial works

If it is considered that the development could be made acceptable with some amendments we could seek to achieve the amendments by negotiation in order to remedy any harm that is being caused. 

Negotiating a solution will always be quicker than taking formal action; it takes 16 weeks on average.

Formal action

If the development is unacceptable the Council must seek to remedy the matter amicably first by requesting its removal. 

If that is not successful, the Council will consider what type of formal action is appropriate to remedy the matter. 

If at this stage you have crucial evidence that the Council needs to rely on, we will contact you to request that you provide formal statements to support the Council in formal action and attend any appeal/court hearing as a witness. 

When taking formal action there are legal and procedural steps that have to be followed and this can be a lengthy process, on average it takes about 30 weeks from receiving a complaint to serving a formal notice.

If an enforcement notice has been issued, the recipient has a right of appeal.  You may be contacted to ask if you wish to submit additional information or appear at an inquiry or hearing to support the Council’s case. 

Once an appeal has been lodged any subsequent representations received become public documents which are available for public inspection including the appellant and their legal representatives.  Action is then on hold pending the outcome of the appeal.

More information can be found in relation to this process by visiting Planning Enforcement and the government's guidance on effective enforcement.

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