Planning Enforcement Policy
Welcome to the Planning Enforcement Page
The Planning Enforcement service is a County-wide service but operates from the following locations:
- North Office, Neuadd Maldwyn, Severn Road, Welshpool, Powys, SY21 7AS
- South Office - County Hall, Spa Road East, Llandrindod Wells, Powys LD1 5LG
Enforcement covers all aspects relating to breaches of planning control. A breach of planning control occurs when certain categories of "development" takes place without the requisite planning approval of the County Council and includes the following:
- carrying out building operations or the change of use of a property without planning permission or a building not built in accordance with an approved plan or not complying with conditions of a planning permission
- carrying out works to a listed building without listed building consent
- displaying certain kinds of signs or advertisements without advertisement consent
- felling or carrying out of works to a tree which is the subject of a Tree Preservation Order or is situated within a designated conservation area
The County Council operates an adopted policy in relation to the enforcement of planning control. The objectives of the enforcement policy is threefold:
- To remedy the undesirable effects of unauthorised development
- To bring unauthorised activity under control to ensure that the credibility of the planning system is not undermined
- To strike a balance between protecting amenity and other interests of acknowledged importance, and allowing acceptable development to take place.
The Council is mindful that enforcement action is a discretionary power to be taken only when it is expedient to do so, and any action taken should be commensurate with the breach of control. It should be remembered that it is not an offence to carry out development without first obtaining planning permission. It is however an immediate offence to alter the character of a listed building without listed building consent, to display advertisements without advertisement consent and to carry out works to protected trees without the consent of the Council. Section 73A of the Town and Country Planning Act 1990 (as amended) specifically provides that planning permission may be granted to regularise development already carried out. Enforcement action should not be taken simply to remedy the absence of planning permission where development carried out is acceptable on its planning merits.
Notwithstanding the above, the Council will take effective enforcement action when it is essential to protect the amenity of the area, the historic built environment, public or highway safety, and the integrity of the development control process within the County. This is explained more fully in the Council's adopted policy.
Other controls, which are also dealt with by the Planning Enforcement team include:
Listed Building Control - (a) prosecution for offences where work is carried out without consent which affects the character of the building; (b) restoration or other works to building by enforcement action
Conservation Areas - prosecution for offences where unauthorised demolition has taken place
Trees - (a) prosecution for unauthorised felling, lopping or topping of trees that are the subject of a Tree Preservation Order or within a Conservation Area; (b) serving Tree Replacement Notices where trees are removed without consent or exemption
Advertisements - (a) prosecution for unauthorised display; (b) discontinuance action on amenity or public safety grounds following the expiry of express consent
Untidy sites - adversely affecting the amenity of an area - service of notice under Section 215 of the Town and Country Planning Act 1990 (as amended), followed by prosecution and/or direct action for non-compliance.
How to contact us:
Addresses, telephone and fax contact numbers
PLANNING ENFORCEMENT POLICY AND PROCEDURAL GUIDE
This section details the Council's comprehensive "Enforcement Policy and Procedures" that will be followed under the various forms of action prescribed by planning legislation.
POWYS COUNTY COUNCIL PLANNING ENFORCEMENT POLICY
The Council's adopted policy on enforcement of planning control The main types of breaches of planning control needing possible action
POWYS PLANNING SERVICES ENFORCEMENT POLICY OBJECTIVES
Why enforce? Three principal objectives for taking action.
THE LOCAL PLANNING AUTHORITY'S APPROACH TO ENFORCEMENT
The factors to be considered before action may be taken The "discretionary" power to take or not to take action - is the matter serious enough? The most appropriate options for action
THE COUNCIL'S ADOPTED ENFORCEMENT POLICY
The circumstances where immediate action will be taken
Minor or technical breaches of planning control
Non-compliance with conditions
Material changes of use
Controls available to deal with untidy sites
The control of illegal signs and advertisements
Partially completed development sites
Protection of trees
TYPES OF NOTICES THAT CAN BE ISSUED IN RESPECT OF PLANNING ENFORCEMENT
How we will handle complaints, response times, confidentiality
How will we prioritise the handling of various categories of complaint
PLANNING ENFORCEMENT POLICIES AND PROCEDURES
Government advice is that Councils should make a clear statement on their planning enforcement policies. This should provide a firm decision-making framework to enable effective enforcement procedures to be put in place. All local planning authorities in Wales must strive to deal with the Enforcement of Planning Control as prescribed by Welsh Assembly Government Technical Advice Note 9 (TAN 9) (October 1997).The planning enforcement policy will address issues that have to be considered whilst dealing with investigations and in the decision making process. The procedures will outline how complaints are to be dealt with along with guidance on procedures required when dealing with investigations.
2. THE LOCAL PLANNING AUTHORITY'S APPROACH TO ENFORCEMENT
The integrity of the development control process depends on the readiness of the Council as local planning authority to take enforcement action when it is considered expedient to do so. The Council accepts that quick initiation of enforcement action is vital to prevent a breach of planning control from becoming well established and more difficult to stop. It also recognises the importance of establishing effective controls over unauthorised development but also acknowledges the need for constructive communication to take place prior to the consideration of enforcement action. The Council will not condone wilful breaches of planning law but it will exercise discretion about taking enforcement action if it is considered expedient to do so.
3. POLICIES ON ENFORCING PLANNING CONTROL
3.1 Main Enforcement Policy Statement
Policy PE 1
(a) The local planning authority recognises the importance of establishing effective controls over unauthorised development, to assist in the preservation and enhancement of the qualities of both the built and natural environment and to protect public amenities.
(b) Reasonable resources will be committed to ensure effective implementation and maintenance of planning control.
(c) As local planning authority, the Council will exercise all reasonable powers granted under the Town & Country Planning Act 1990 (as amended), Planning (Listed Buildings & Conservation Area) Act 1990, including all other subordinate legislation, regulations and orders, to control all unauthorised development effectively. In considering whether it is expedient to start enforcement action, the local planning authority will take into account the Development Plans, the Human Rights Act 1998 and all other material considerations.
3.2 Initiating Enforcement Action
In considering enforcement action, the Council will assess whether the breach of planning control unacceptably affects public amenity or causes harm to land or buildings. The first step will be to attempt to persuade the person responsible for the breach to voluntarily remedy any harmful affects of the unauthorised development. Discussions though must not unduly hamper or delay any necessary enforcement action Policy
Policy PE 2
Immediate planning enforcement action will be taken against any unauthorised development which unacceptably affects public amenity or causes a material harm to land or buildings.
3.3 Minor or Technical Breaches of Planning Control
Enforcement action must always be commensurate with the breach of planning control to which it relates. It is inappropriate to take formal enforcement action against a trivial or technical breach of control which causes no harm to public amenity.
Policy PE 3
Formal enforcement action will not normally be taken where a trivial or technical breach of planning control has occurred that causes no material harm.
3.4 Where Acceptable but Unauthorised Development has been carried out.
Where development has been or is in the process of being carried out without planning permission, assessment will be made to establish if it is likely that unconditional planning permission would be granted. If this is the case then a retrospective application will be requested within a reasonable time limit. If no application is received the owner and any other person with an interest in the property should be notified that without planning permission there could be problems with a future sale.
Policy PE 4
Where development has been carried out without planning permission and unconditional planning permission could be granted, but no application has been received a Planning Contravention Notice may be served. The intention will be to set out the implications of having carried out the development without planning permission. Where there is no planning objection to the development no further enforcement action will be taken.
3.5 Imposition of Planning Conditions to make Unauthorised Development Acceptable.
Where development has been or is in the process of being carried out without planning permission, an assessment will be made to establish whether any planning objections generated by the unauthorised development can be overcome through the imposition of conditions. If this is the case then a retrospective planning or related application will be requested within a reasonable time limit. If no application has been received then an Enforcement Notice may be issued and the notice must clearly explain why the unauthorised activity is unacceptable to public amenity, the environment or safety. It will also specify what steps will be required to be taken to remedy those concerns.
Policy PE 5
Where development has been carried out without planning permission and it is considered permission could be granted subject to conditions, an enforcement notice may be served if no retrospective application had been received within a specified time.
3.6 Where Unacceptable Unauthorised Development Warrants Immediate Action
Where it is considered that an unauthorised development is causing unacceptable harm to public amenity and there is little likelihood of the matter being resolved voluntarily or through negotiations, the Council will take urgent action to remedy the breach.
Policy PE 6
Where unauthorised development is causing unacceptable harm to the public amenity or immediate action is required to prevent further serious harm the Council may serve both an enforcement notice and a stop notice or temporary stop notice.
3.7 Non-compliance with Planning Conditions
Where planning permission has been granted for development subject to planning conditions, the conditions shall be complied with in full. Where there is a failure to comply with those conditions, the Council can serve Breach of Condition Notice or an Enforcement Notice. There is no right of appeal to the Welsh Assembly Government against a Breach of Condition Notice and the failure to comply with such a Notice is a criminal offence.
However, if it is a condition precedent that has not been complied with then an Enforcement Notice must be served for unauthorised development and the issuing of a temporary stop notice will be considered.
Policy PE 7
Where conditional planning permission has been granted but conditions have not been complied with, a Breach of Condition Notice or an Enforcement Notice may be served, depending on the circumstances of the case.
3.8 Unauthorised Building or Other Unauthorised Operational Development
Planning permission will normally be needed for building or other physical works ("operational development"), unless the works are considered permitted under the Town and Country Planning (General Permitted Development) Order 1995.
Policy PE 8
Where unauthorised operational development has been carried out, then enforcement action will be considered in accordance with the general enforcement policies PE 1 - 6.
3.9 Unauthorised Change of Uses - General
Under Section 55 of the Town & Country Planning Act 1990 (as amended) certain change of uses are specified that do not require planning permission, the use of buildings or land within the curtilage of a dwelling house for any purpose incidental to the enjoyment of the dwelling house, the use of any land for agriculture or forestry, uses falling within the same class of the Use Class Order. Where a change of use is unauthorised then planning permission will be required or enforcement action.
Policy PE 9
Where a material change of use has occurred that requires planning permission or is unauthorised then enforcement action will be considered in accordance with the general enforcement policies 1- 6.
3.10 Unauthorised Use of a Single Dwelling in Multiple Occupation
The Council recognises that houses in multiple occupation can contribute to the housing market, meeting the needs of small households and lower income groups. The local planning authority is concerned that this form of housing should not be at the expense of the reasonable standard of residential amenity. The local planning authority will seek to retain the character of single family housing areas and in particular will look to retain a stock of properties suitable for single family occupation. Some properties by virtue of their size, limited garden area and relationship with adjoining properties are not suitable for conversion. These properties may also cause other problems such as parking.
Policy PE 10
Where a property is in use as a house in multiple occupation without planning permission enforcement action will be considered in accordance with the general enforcement policies 1 - 6.
3.11 Where Unauthorised Development would be Acceptable on Alternative Site
It is not the Council's responsibility nor a requirement under the enforcement provisions to identify or provide alternative sites to which unauthorised development might be re-located. Nevertheless, if, as part of its economic development functions, the Council is aware of an alternative site it will usually be helpful to suggest it and to encourage the removal of the unauthorised development to it.
This consideration will be given to unauthorised businesses and if a suitable site is known then a reasonable timetable will be granted for the re-location. If the timetable is ignored, it will usually be expedient to issue an enforcement notice.
Policy PE 11
Where development is unauthorised but an alternative acceptable site is available if it is for the economic benefit of the community, a timetable will be granted for re-location. If the timetable is ignored an Enforcement Notice may be issued and this will be in accordance with the general enforcement policies PE 1 - 6.
3.12 Where Unauthorised Development is Unacceptable and Relocation is Not Feasible
Where unauthorised development is unacceptable and relocation is not possible the economic benefits cannot override planning controls. The unauthorised development must be controlled via the submission of a planning application or enforcement action, if neither option is pursued then the development even if it remains unauthorised but at a lower level, must be enforced against otherwise it may achieve established use or development.
Policy PE 12
Where unacceptable unauthorised development has occurred and relocation is not feasible then enforcement action must be pursued to avoid the unauthorised activity becoming established. An enforcement notice may be issued and this will be in accordance with the general enforcement policies PE 1 - 6.
3.13 Unauthorised Development by Private Householders
Where the householder appears to have relied upon permitted development rights but a specified limitation has been exceeded, in considering whether it is expedient to take enforcement action, full regard shall be taken as to what would have been permitted if the development had been carried out in strict accordance with the relevant provisions. Enforcement action should not be taken to remedy a slight variation.
Policy PE 13
Where the unauthorised development is contrary to the permitted development rights as specified by the Town & Country (General Permitted Development) Order 1995 then enforcement action should only be considered if it is expedient and this shall be carried in accordance with the general enforcement policies PE 1 - 6.
3.14 Unauthorised Works to a Listed Building
Works to a listed building normally require Listed Building Consent. Where works have been carried out without consent a criminal offence may have been committed. Subject to the extent and nature of the works, consideration will be given as to whether criminal proceedings shall be commenced and whether to serve a Listed Building Enforcement Notice to ensure that appropriate remedial works are undertaken. The Council in considering the type of action will take into account the degree of harm to the character of the building and whether the full restoration is feasible.
Policy PE 14
Where works without consent have been carried out to a listed building and those works materially affect the character and appearance either internally or externally, consideration will be given to criminal proceedings and the issuing of a Listed Building Enforcement Notice, such a notice shall be issued in accordance with the general enforcement policies PE 1 - 6.
3.15 Unauthorised Development in a Conservation Area
The local planning authority has a statutory duty to ensure that any development within a Conservation Area or a designated Article IV Area, preserves or enhances
the character and appearance of the area. Where unauthorised development takes place and it is believed that it seriously affects the character and appearance of a Conservation Area, remedial steps will need to be taken by negotiation or enforcement action.
Policy PE 15
Where unauthorised development has taken place in a conservation or Article IV Area and the development does not preserve or enhance the character of the area enforcement action will considered in accordance with the general enforcement policies PE 1 - 6.
3.16 Control over Mineral Working
Mineral planning control is well established as part of the general planning system and there are no separate enforcement powers for unauthorised mineral working. The general principles applicable to enforcement apply equally to mineral cases. Consideration must be given to the effect on the landscape and public amenity especially in relation to noise, dust, hours of operation and with the difficulty that restoration may cause or the effects that compliance might make on the amenities and health of local residents. Hence, it may be necessary to take immediate enforcement action.
Policy PE 16
Where unauthorised mineral workings have been carried out the type of enforcement action to be considered must give consideration to the effect on the locality and public amenity, if action is required then this will be in accordance with the general enforcement policies PE 1 - 6.
3.17 Control over Waste Disposal Sites.
Waste disposal sites are controlled by the planning system in conjunction with the Environment Agency. The general principles applicable to enforcement apply equally to waste disposal sites. Consideration must be given to the affect on the landscape and public amenity especially in relation to noise, dust, hours of operation and with the difficulty that restoration may cause or the effects that compliance might make on the amenities and health of local residents. Hence, it may be necessary to take immediate enforcement action
Policy PE 17
Where unauthorised waste disposal sites have been carried out, the type of enforcement action to be considered must give consideration to the affect on the locality and public amenity, if action is required then this will be in accordance with the general enforcement policies PE 1 - 6.
3.18 Development Carried Out when it is not in Accordance with the Approved Plans.
Where development is carried out with planning permission, but it does not strictly accord with the approved plans, an assessment will be made to establish whether the changes from the approved plans are sufficiently material to constitute new development, requiring a separate planning application.
Where the changes to the approved plan are relatively minor and materially do not affect the development as a whole, they may be considered 'de minimus' and in that instance no further action will be taken.
Whilst the Council does not condone such works being carried out, it recognises that in many instances minor variations do not cause material harm. Therefore, in accordance with PE 3 no action will be taken. Any assessment must take into account the site, surroundings, the scale of changes, effect on neighbouring properties, any objections received in respect of the development and the consequences of those changes.
Policy PE 18
Where development is being carried out which is considered significantly different from the approved plans enforcement action will be pursued in accordance with the general enforcement policies PE 1 - 6. However, if the changes are considered 'de minimus' following a proper assessment then no further action will be taken.
3.19 Incomplete or Partially Completed Development
Where planning permission has been granted and the development has commenced within the stipulated time limits as stated by the permission the Council may review the development if it is considered that the development is taking an inordinate amount of time to complete. Under Section 94 of the Town & Country Planning Act 1990 (as amended) a completion notice may be issued if it considered that the development is unlikely to be completed or that the development is becoming visually intrusive on the locality. In such cases the developer must be informed of the Council's power and given a reasonable time in which to complete the development. If after such time no reasonable effort has been made then a completion notice may be served. A completion notice has to be confirmed by the Welsh Assembly Government, therefore the developer has a right to present his case prior to a decision. If the notice is confirmed and the development is not completed within the time limits, planning permission lapses and the development becomes unauthorised. A notice cannot compel a developer to complete development. The effect of such a notice is therefore limited to removing the benefit of the planning permission.
Policy PE 19
Where planning permission has been granted with an authorised commencement but the development has not been completed, a Completion Notice may be issued if it is considered that the developer has been granted sufficient time to complete the development. Consideration will be given to the appearance of the development site and its effect on the locality.
3.20 Derelict or unsightly land or buildings
The condition of certain buildings or land can cause harm to the visual amenity of an area. Where the condition of the land or building is causing significant harm to the public amenity, consideration may be given to serving an amenity notice under Section 215 of the Town & Country Planning Act 1990 (as amended). The Notice will specify measures to be taken to improve the appearance of the land or building. If the notice is not complied with then it becomes a criminal offence. If the building is considered to be dangerous the Council may also use its power under the Building
Act 1984 whereby Section 79 allows the authority to require the owner by notice to execute such works of repair or demolition if the building is seriously detrimental to the amenities of the neighbourhood.
Policy PE 20
Where a building or land is in a condition that seriously detracts from or affects the visual character of the area, measures will be required to improve the area. Where no improvement has been carried out then the local planning authority may serve a Section 215 Notice under the Town & Country Planning Act 1990 (as amended) or Section 79 of the Building Act 1984 whichever is considered appropriate.
3.21 Display of Illegal Advertisements.
The Town and Country Planning (Control of Advertisements) Regulations 1992 allows the display of some classes of advertisements and signs without the need for advertisement consent. In many instances consent is required to display an advertisement and where no such consent has been granted then it constitutes a criminal offence. Where the advertisement causes serious harm to the public amenity or public safety the sign will be required to be removed immediately. If the advertisement continues to be displayed then criminal proceedings will be considered. If it is considered that consent may be granted an application will be required within a specified period but if no application is received then the same consideration will be applied as demonstrated in the general enforcement policies
Where an advertisement has been displayed without express consent and causes serious harm to the amenity or public safety the local planning authority will require it to be removed immediately. Where the advertisement continues to be displayed prosecution proceedings will be commenced. In instances where the advert requires consent but it is considered that no serious harm has been caused or that there is no public safety concerns then an application will be requested. If no application is forthcoming then prior to prosecution the general enforcement policies PE 1 - 6 will be considered.
3.22 Fly Posting
Fly posting on buildings, street furniture and other structures is a criminal offence although it is considered difficult to enforce, especially when fly posting is carried out as a clandestine activity. Action can be taken either by securing the removal of the poster or prosecuting the person responsible or the owner of the event. Particular priority will be given where fly posting occurs in sensitive areas such as within Conservation Areas.
Policy PE 22
All fly posting that is carried out in sensitive areas and causes serious harm to the character or amenity of the area, prosecution proceedings will be taken against any person responsible or the owner of the event. In all other cases every effort will be made to educate the offender and consider prosecutions against repeat offenders.
3.23 Legal Agreements
Sometimes planning permission is granted subject to the applicant entering into a Section 106 Agreement under the Town & Country Planning Act 1990 (as amended). The agreement may require certain works to be carried out, conditions, payment of monies or occupancy conditions etc. The Council will monitor compliance with agreements and will take necessary action to secure compliance with covenants.
Policy PE 23
Effective monitoring procedures will be maintained to make sure that the legal agreements are complied with. The Council will take necessary action to secure compliance with covenants contained within legal agreements.
3.24 Protection of Trees
Consent is required for any works in connection with a tree preserved by a Tree Preservation Order (TPO) or in a Conservation Area. TPOs can protect individual or groups of trees having amenity value. Subject to certain exceptions, Section 210 of the Town & Country Planning Act 1990 (as amended) provides that if any person, in contravention of a TPO, cuts down, uproots or wilfully destroys a tree or wilfully damages, tops, or lops a tree in such a manner as to be likely to destroy the tree he/she shall be guilty of an offence. In appropriate cases, injunctive proceedings may be taken to enforce a TPO. Under Section 211 of the Act if a person does the same to any tree within a Conservation Area then that person is guilty of an offence and liable to criminal proceedings. The local planning authority has the power, if it is considered appropriate to serve an enforcement notice to seek a re-planting scheme for the loss of any trees.
Policy PE 24
Where a tree is subject to a Tree Preservation Order or located within a Conservation Area and the appropriate consent has not been granted for works to that tree then criminal proceedings will be considered against the person responsible. The owner of the land will be required to re-plant in accordance with a scheme reasonably required by the local planning authority and within a specified timetable. Failure to carry out such a scheme may result in an Enforcement Notice being served in accordance with the general enforcement policies PE1 - 6.
3.25 Protection of Hedgerows
Under the Hedgerow Regulations 1997 the local planning authority may prosecute for the removal of a protected hedge and seek a re-planting scheme that also may be enforced.
Policy PE 25
Where a hedge is protected under the Hedgerow Regulations 1997 and the appropriate consent has not been granted for works to that hedge then criminal proceedings will be considered against the person responsible. The owner of the land will be required to re-plant a hedge by the local planning authority within a specified timetable. Failure to carry out the re-planting may result in an Enforcement Notice being served in accordance with the general enforcement policies PE1 - 6
3.26 In order to provide an effective enforcement service it is necessary that all information received is treated confidentially.
This is required to protect a complainant and to avoid unnecessary distress to any person being investigated. The legal powers to maintain confidentiality derives from the Local Government Act 1972 Schedule 12A Part 1. Furthermore under the Freedom of Information Act 2000 all enforcement files that are alive, i.e. that there is an ongoing investigation are exempt from being made public and that a complainants' name is treated at all times as exempt information.
Policy PE 26
All complaints and investigations will be treated confidential at all times and even after the investigations have ceased the complainant's identity will not be released.
3.27 Human Rights Act 1998
In deciding whether enforcement action should be taken, the Council must consider the question of Human Rights. Article 1 reads: "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions, except in the general public interest and subject to conditions provided for by law. Article 8 of the Human Rights Act 1998 states
- "Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or the protection of the rights and freedom of others."
Policy PE 27
The local planning authority when considering any type of enforcement action under planning legislation must take into account the Human Rights Act 1998 with special merit being given to Article 1 and 8. Enforcement action may be pursued if the balance of proportionality lies with the local planning authority.
4.0 WHAT COMPLAINTS CAN BE DEALT WITH BY THE COUNCIL'S PLANNING SERVICES?
In order to provide an effective enforcement service, it is important to understand that the only type of complaints that can be handled by the Council's Planning Services are the following :-
- development without the benefit of planning permission
- development exceeding a permitted development limit
- development not in accordance with a planning permission or consent.
- breach of a condition attached to a planning permission or other consent
- unauthorised (or threatened) works to a protected tree (includes TPOs and trees in a conservation area) and protected hedgerows.
- unauthorised advertisements
- unauthorised (or threatened) works which affect the special character of a listed building
- unauthorised demolition (or threatened) of an unlisted building within a Conservation Area
- untidy land/building affecting the amenity of an area
- non-completion of an authorised development
5.0 TYPES OF NOTICES THAT CAN BE ISSUED IN RESPECT OF PLANNING ENFORCEMENT
The Council has the power to issue a variety of notices in order to regularise the breach of planning control or to carry out an investigation. It must be remembered that the issuing of any form of notice must be in accordance with policy and the correct procedure must have been followed. The local planning authority's primary objective is to resolve matters without recourse to legal notices but if required the following notices may be issued: -
5.1 Section 16 Notice under the Local Government (Misc. Provisions) Act 1976 - notice served prior to the consideration of enforcement action to ascertain ownership and any other interest in the land. The minimum period for compliance is 14 days and immediate prosecution may be taken where there is non-compliance.
5.2 Planning Contravention Notice - notice served where it is considered a breach of planning control has occurred and further information is required from the person adjudged to have caused the breach, to ascertain how serious the breach is, reasons for the breach and any questions that are pertinent to the investigation. The minimum period for compliance is 21 days and immediate prosecution may be taken where there is non compliance. The Head of Planning Services before and during the exercise of this power shall have appropriate discussions with the Local Representative for the electoral division affected so that the councillor may be fully appraised and have proper opportunity of making his/her views known.
5.3 Breach of Condition Notice - notice served when it is considered that a person has not complied with a planning condition. The notice will stipulate work to be carried out to comply with the original condition. The minimum period for compliance is 28 days and immediate prosecution may be taken where there is non-compliance. The Head of Planning Services before and during the exercise of this power shall have appropriate discussions with the Local Representative for the electoral division affected so that the councillor may be fully appraised and have proper opportunity of making his/her views known.
5.4 Enforcement Notice - The notice can be served in respect of most breaches of planning control. The notice becomes a land charge and therefore runs with the land in perpetuity. The notice becomes effective after a minimum period of 28 days from the date of service. During that time a recipient has the right to appeal to the Welsh Assembly Government. The notice must stipulate the breach, reasons for issuing the notice and what works must be carried out within a specified period. If the notice has not been complied with then the recipient may be prosecuted. The Head of Planning Services before and during the exercise of this power shall have appropriate discussions with the Local Representative for the electoral division affected so that the councillor may be fully appraised and have proper opportunity of making his/her views known.
5.5 Section 215 Notice/Amenity Notice -The notice can be served in respect of land/building which is in an unreasonably untidy condition and affects the amenity of the area. The notice must stipulate what is required to rectify the problem together with a reasonable time limit for undertaking the works. The minimum period for compliance is 28 days in which time a person may appeal to the Magistrates Court. Immediate prosecution may be taken for non-compliance.
5.6 Injunction - This is usually used in exceptional circumstances, where it considered that the breach needs restraining or every other avenue has been exhausted. Injunctive relief must only besought if it is considered that it is the last remedy because failure to comply with a Court Order would mean the person the subject of the action may be sent to prison. Any such action is open to legal challenge that may delay proceedings.
5.7 Temporary Stop and Stop Notices -Such notice is normally served in conjunction with an Enforcement Notice. The effect of a successful notice is that all works must cease immediately. A temporary Stop Notice is a new provision within the Planning & Compensation Act but requires secondary legislation to effect these provisions. Stop Notices can be subject to challenge and possibly compensation. Thus the local planning authority will only contemplate serving such notices in the most exceptional of circumstances. The Head of Planning Services before and during the exercise of this power shall have appropriate discussions with the Local Representative for the electoral division affected so that the councillor may be fully appraised and have proper opportunity of making his/her views known.
5.8 Discontinuance of advertisements - a discontinuance notice may be served on an advertisement that no longer benefits from express consent requiring its removal. Advertisements that are displayed without express consent may be subject to immediate prosecution.
5.9 Completion Notice - The notice is served when planning permission has been granted but it is considered that following a legal commencement, the works have not progressed. The notice will specify a reasonable time for the completion of the development. If the development remains incomplete at the end of this period, the planning permission will lapse and the development will become unauthorised. A notice may only become effective after it has been confirmed by the Welsh Assembly Government.
5.9.1 Urgent Repairs Notice -The notice is issued in respect of listed building in a poor state of repair and in need of urgent attention to prevent further damage. The works specified are normally confined to that considered absolutely necessary to prevent further damage. Failure to comply with the notice will result in the local planning authority carrying out the works and recovering the costs.
5.10 Ruinous & Dilapidated Notice - This notice is issued under Section 79 of the Building Act 1984 and requires Committee approval. The notice may be considered if it appears to the local planning authority that a building or structure is by reason of its ruinous or dilapidated condition seriously detrimental to the amenities of the neighbourhood. A notice may be served on the owner requiring the works to restore or repair or if he so elects steps for demolishing the building/structure. Furthermore, if it appears to the local planning authority that rubbish or other material resulting from the demolition or collapse of a building/structure is seriously detrimental to the amenity a notice may be served requiring steps for its removal. The recipient of a notice does have a right of appeal to the Magistrates Court.
6.0 COMPLAINTS PROCEDURE
The purpose of the planning enforcement complaint procedure is to ensure that all complaints are handled in a consistent manner so that the complaints can be properly verified, recorded and investigated. It is important that the procedure ensures that a balance is kept between the rights of the complainant and the person who allegedly has breached planning control.
6.1 Complaints in Writing, Fax or E Mail - if a complaint is received it will be date stamped and forwarded to the assigned Case Officer who will input the data on the computer system within two working days of receipt. All complaints will be treated as Confidential.
6.2 Oral Complaints - if any person wants to make an oral complaint, then the details of the complaint shall be taken down on a pro-forma complaint sheet and then passed to the assigned Case Officer who will input the data on the computer system within two working days of receipt. All complaints will be treated as Confidential.
6.3 Anonymous Complaints - if a complaint is received it will be date stamped and forwarded to the assigned Case Officer who will input the data on the computer system within two working days of receipt. The complaint will only be investigated if it considered by the Case Officer that the nature warrants further investigation.
6.4 Prioritisation of Complaints - The Case Officer will determine the priority of the complaint and this will determine how the complaint will be handled. This may be re-assessed after the initial investigation:
- High Priority - will be afforded to a breach of control causing or likely to cause serious harm to the natural or historic environment or public safety where an immediate response is necessary. For instance, works to a listed building, a hedgerow, a protected tree.
- Medium Priority - any breach of planning control that is not a high or low priority.
- Low Priority - anonymous complaints, unauthorised advertisements that are not in a conservation area or are not a danger to public safety, minor variations from approved plans that are not causing any amenity problems.
6.5 Handling Complaints
6.5.1 All complaints (apart from anonymous) will be acknowledged in writing within 5 working days from the receipt of the complaint. The letter will advise the complainant of the proposed timetable for the investigation. If the complaint can be dealt with within the 5 working day period then a full written response will be sent to the complainant.
6.5.2 All high priority complaints will be investigated as soon as practicable but within 3 working days from the receipt of the complaint.
6.5.3 All medium priority complaints will be investigated within 7 working days from the receipt of the complaint and if required a site visit will be made within this period.
6.5.4 All low priority complaints will be investigated within 10 working days from the receipt of the complaint and if required a site visit will be made within this period.
6.5.5 Within 15 working days from the date of the receipt of any complaint, the complainant will be informed, in writing, of the progress of the investigation that must include a timetable of any proposed action by the Case Officer. If the complaint has not been resolved within this period then the complainant must be kept informed of the ongoing investigation after every 15 working days from the last communication.
6.6 Concluding & Closing a Complaint
6.6.1 If it is considered by the Case Officer the complaint being investigated constitutes permitted development, then the relevant section of the General Permitted Development Order 1995 shall be recorded on the working file and computer system.
6.6.2 If a planning application is submitted then this will conclude the investigation and shall be recorded on the working file and computer system.
6.6.3 If a planning condition has been complied with this will be recorded on the planning file and computer system.
6.6.4 If the complaint cannot be actioned or addressed under the planning legislation, this will be recorded on the working file and computer system and where it is possible to decide who is responsible for the complaint then it will be forwarded to the relevant party and the complainant informed.
6.6.5 If no action is warranted as it is considered not expedient to pursue enforcement action, then the Case Officer will conclude the investigation with a written report, explaining the issue of expediency and in order for the investigation to be closed this report must be signed off by the appropriate Planning Applications Manager. This is considered essential as a decision to not progress a case on grounds of expediency is in effect a determination to allow a technical breach of planning control to continue.
7.0 PRO-ACTIVE ENFORCEMENT
7.1 All officers from within the local planning authority shall play an active role in ensuring that any suspected breaches of planning control that may have been witnessed whilst carrying out their own duties shall be reported to the Enforcement Team or Area Development Control Planning Team.
7.2 If a suspected breach is witnessed by any officer it will be received, date stamped and forwarded to the assigned Case Officer who will input the data on the computer system within two working days of receipt.
7.3 The complaint will be prioritised and dealt with in accordance with the timetable and procedures for closing the investigation as outlined in Section 6 above.
7.4 The monitoring of new development shall be carried out in a collective manner by officers within the local planning authority, namely, Enforcement Officers, application Case Officers and Building Control Officers. Any breaches that are witnessed by the said officers shall be dealt with in the same manner as other complaints as outlined in section 6 above.
8.1 All investigations will be conducted on a professional basis and prior to the consideration as to whether a breach has occurred the alleged person responsible for the breach will be given an opportunity to comment. If it is considered that it is a neighbour dispute then the alleged person responsible for the breach will not be approached unless it is absolutely necessary to obtain the information necessary for a decision to be made as to the appropriate action.
8.2 In appropriate cases, the Investigating Officer must make an assessment when the Police and Criminal Evidence Act 1984 should be used and also all covert surveillance operations must be fully assessed under Regulatory Investigative Powers Act 2000 and the correct authorisation obtained from the Authorising Officer.
8.3 Following each site visit, the Investigating Officers must make notes and this must be carried out by the use of a Contemporaneous Note book, that should include the time of the visit, names, addresses, telephone numbers of any person spoken to, along with a précis of the conversation that took place. If no person was present then a record of the visit must be entered and what was witnessed.
8.4 The Contemporaneous Notebook must also record the date, time and location of any photographs taken on site. When the photographs are printed they must be signed, dated and a brief description of the location noted on each photograph. If the photograph has been taken in order to be used as evidence then a copy of the photograph shall be placed on the file and a hard copy made of the digital image and placed in a sealed plastic bag, marked, signed and dated along with a statement by the person responsible for taking the photograph. It must be remembered that photographs taken for prosecution purposes must be in accordance with the Regulatory Investigative Powers Act 2000.
8.5 Prior to a site visit, if evidence has been received or it is considered that a site visit may compromise an Officer, a risk assessment must be carried out by the Officers' line manager. In situations where the site is considered isolated then the visiting Officer will use the "buddy system" or the Councils' own lone working scheme.
9.0 LEGAL NOTICES & REPORTS
Legal notices must be approved by the legal department of the Council. All notices shall be served in strict accordance with the method of service prescribed by the said Act they are being served under.