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What actions can the Council undertake to remedy breaches of planning control?
What actions can the Council undertake to remedy breaches of planning control?
Government Guidance makes it clear that the Council should not pursue formal enforcement action unless there are clear planning grounds to do so. Therefore, if an enforcement investigation concludes that there is a breach of planning control, the Council will decide whether it is expedient to pursue formal enforcement action.
The Council will need to be satisfied that the breach is resulting in harm, which is significant in planning terms. In most cases where a breach has occurred we will write to the person responsible advising them of the breach and suggesting a course of action to remedy the breach before undertaking formal enforcement action. If it looks as if a breach cannot be resolved voluntarily, the decision over what action to take will depend on an assessment of the level of harm caused by the breach.
Where a retrospective planning application is submitted relating to a development which has already been started without planning permission, the application will be considered against development plan policy and any other material planning considerations. In planning law the fact that development has been carried out in advance of planning permission is not a relevant factor in the decision making process.
What are the types of formal action the Council can take?
Planning Contravention Notices
If uncooperative transgressors hinder the Council in its investigations, the Council may serve a Planning Contravention Notice. This will require answers to specific questions to be provided within a set time period. Action can be taken in the Courts if a proper reply to the Notice is not received.
Enforcement Notice
Once the Council has decided to serve an Enforcement Notice, we will issue requisitions asking for information to be provided relating to any parties who have a legal interest in the property. If the information is not provided within the specified period, prosecution may follow. The Enforcement Notice will be served on all the parties who have a legal interest, even though they may not be directly involved in the activities themselves. The Notice will specify the breach of planning control, the steps required to remedy the breach and the period of time allowed for compliance. The period will commence 28 days from the date of the notice.
Anyone who receives an enforcement notice may appeal within 28 days from the service of the notice. Appeals are made to the Planning Inspectorate who are completely independent of the Council. Once the Planning Inspectorate accepts an appeal as valid, the actions required by the Council under the Enforcement Notice are put in abeyance until the outcome of the appeal is known. The grounds on which an appeal can be lodged are set out in the Town and Country Planning Act 1990. It is usual for appellant's to be represented professionally so as to gain advice as to which grounds are relevant.
Breach of Condition Notice
The Council can issue a Breach of Condition Notice where a conditionattached to a planning permission has not been followed. There is no specific right of appeal against a Breach of Condition Notice and it will take effect 28 days from the date of the notice.
Injunction
In the most serious cases, serving an injunction is a more appropriate course of action than an Enforcement Notice. Failure to comply with an Injunction is a contempt of court for which there are serious penalties.
Stop Notice
In certain circumstances and where the Council believes the breach of control is so serious it should be stopped immediately, the Council can serve an Enforcement Notice followed by a Stop Notice. The Stop Notice will require the building works or unauthorised use to stop immediately. Again an appeal can be submitted under the procedure previously described. In some cases where an Inspector on appeal does not uphold a Stop Notice, the Council may be liable to pay compensation.
What happens if people refuse to comply?
If an appeal is not lodged or not accepted as being valid by the Planning Inspectorate, and the steps required by the Enforcement Notice to remedy the breach have not been taken within the specified period, the Council has powers to encourage and ensure compliance.
Prosecution
Legal action is not taken lightly. The Council will need to be satisfied that it is in the public interest to take proceedings. The Council will and does take legal action when it is appropriate. Prosecution does not in itself resolve the breach of planning control.
Direct Action
Where a breach of planning control is not being resolved and an Enforcement Notice has taken effect but has not been complied with, the Council can decide to carry out the works necessary to remedy the situation itself. The Council would serve notice of its intentions on the owners and occupiers of the land before a contractor carries out the work. The cost of the work would be reclaimed from the owner or a charge placed on the land, so that the Council's costs are recovered when the land is sold.