Cornwall Council’s Planning Enforcement Plan sets out our procedures for dealing with alleged breaches of planning control. It explains how the Council best uses its planning enforcement resources.
What planning enforcement tools are available and when does the Council use them?
Planning laws are designed to manage, and where necessary, control the development and use of land and buildings. They are not intended to protect the private interests of one person against the activities of another.
We will not start formal planning enforcement action just to regularise breaches in planning control or seek a planning fee. In taking formal planning enforcement action the Council will use whichever available enforcement power or combination of powers that can best deal with an identified breach of planning control. The Council will have regard to the development plan and any other material planning considerations.
Material planning considerations include (but are not limited to):
- The Local Development Framework (LDF)
- Development Plan documents
- Supplementary Planning Documents
- The Statement of Community Involvement
- The annual monitoring reports
- Government planning guidance
- The Council’s corporate policies
- Highway safety and traffic levels
- Noise, disturbance and smells resulting from the proposed development
- Design, appearance and layout
- Conservation of buildings, trees and open land
- Flood risk
- Impact on the appearance of the area
- Effect on the level of daylight and privacy of an existing property
- Need to safeguard the countryside or protected species of plant or animal
- Planning case law and previous decisions
- The need for the development
- The planning history of the site
Matters that are not considered to be material considerations include:
- Private property rights such as covenants
- The developer’s identity, morals or motives
- Effect on the value of your property
- Loss of a private view
- Private neighbour disputes
It may be possible to address issues such as these using civil action. Though this is a matter for the individual to pursue and is not an area where the LPA would be involved.
Whether the breach of planning control causes planning harm is key to assessing if it is expedient to take formal action. Any action taken will be proportionate to the breach of planning control to which it relates. This approach to enforcement is set out in the:
Individual factors or a combination of factors can cause planning harm. What could be considered harmful in one circumstance may not be considered harmful in others and a judgement will be required.
Some examples of situations creating harm in planning terms are:
- Increasing the risk of flooding
- Unacceptable design
- Severe harm to highway safety
- Loss of a residential amenity, eg excessive overlooking of windows or gardens, loss of light, or overbearing by large new buildings too close to property boundaries
- Detrimental impact on a general amenity, when comparing against the existing character, appearance and environmental quality of a place
- Harm to heritage assets, for example, a listed building
- Harm to designated landscapes such as Area of Outstanding Natural Beauty (AONB), Conservation Area (CA), World Heritage Site (WHS), etc.
Harm in relation to planning does not include:
- Competition caused to another business
- Loss of an individual’s view or trespass onto their land
- Ownership disputes
- Loss of value to a property
- Rights to light
These issues are private civil matters. You can find advice from a Solicitor or the Citizens Advice Bureau.
In defending planning enforcement action on appeal and in the courts, we have to show that:
- the relevant procedures have been followed and
- that national and local policy on planning and enforcement has been considered.
Where an Enforcement Notice is not being complied with, the Council would usually seek to prosecute or seek an Injunction in respect of non-compliance. Direct action will rarely be taken and only as a last resort. Prosecution action for an offence will only be taken where the evidential and public interest tests have been met.
The planning enforcement team will not take formal action against a minor breach of control that causes no real planning harm. We will have assessed the matter against adopted policies and all material planning considerations. But we do record any breach of planning control and may advise the developer and/or landowner, as appropriate. This is in line with Government advice set out in the National Planning Practice Guidance (NPPG) which states:
“Enforcement action should, however, be proportionate to the breach of planning control to which it relates and taken when it is expedient to do so. Where the balance of public interest lies will vary from case to case”.
To decide what is the most appropriate way forward for each case, LPAs should usually avoid taking formal enforcement action where:
- there is a trivial or technical breach of control. This is where it causes no material harm or adverse impact on the amenity of the site or the surrounding area.
- development is acceptable on its planning merits. Formal enforcement action would solely be to regularise the development.
We follow the Members Planning Enforcement Protocol in all cases.
Planning Enforcement tools
The Council has several formal tools available when dealing with planning enforcement matters:
Enforcement Warning Notice: We can use this if there is a reasonable chance that unauthorised development would receive planning permission. It requests a developer to submit a planning application within a specified timeframe or risk further enforcement action. Not likely to be used for minor technical breaches.
Planning Contravention Notice: Requires persons to divulge information in respect of land and activities. We often use this to determine if there is a breach of control and to help decide the appropriate course of action.
Breach of Condition Notice: Secures compliance with conditions specified within a planning consent. Fines for non-compliance with this type of Notice can potentially have no limit.
Tree Replacement Notice: Requires the replacement of trees removed without planning consent
Enforcement Notice: Requires steps to be taken to remedy the harm caused by unauthorised development
Stop Notice/Temporary Stop Notice: Requires the unauthorised activities to cease immediately. A Stop Notice is linked with an enforcement notice and a Temporary Stop Notice lasts for a period of up to 56 days. A Temporary Stop Notice can now be issued for unauthorised works to a listed building.
Listed Building Enforcement Notice: Requires works to be done to prevent or reverse unlawful works to a listed building
Section 225A Notice: Requires the removal of advertisements displayed without planning consent
Section 330 Notice: Requires a party to provide information about their interests in the land
Section 215 Notice: To secure the proper maintenance of land and buildings and protect a public amenity.
An appeal may be lodged with the Planning Inspectorate against an enforcement notice before it comes into effect. This must be on one of seven specified grounds.
No appeal against an enforcement notice on the ground that planning permission should be granted for the development, if the unauthorised development has an enforcement notice:
- already refused by the Council and
- any subsequent appeal was dismissed (Enforcement Notice must have been issued within 2 years of appeal decision).
Appeals can now also be dismissed if the appellant causes undue delay.
If an appeal is made, the requirements of the notice are on hold until the appeal is decided. Appeals against enforcement notices can sometimes take up to a year or longer.
If an appeal is allowed, the enforcement notice no longer applies.
If an appeal is dismissed the notice will take effect once the specified time has passed. This starts from the date of the appeal decision.
Legal action, such as prosecution, can only be taken if an individual then fails to comply with an enforcement notice. Failure to comply with an enforcement notice is a criminal offence. If the notice is upheld, the penalty for failure to comply is a fine of:
- up to £20,000 on summary conviction or
- an unlimited fine on indictment.
