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Planning Enforcement Policy and Procedure

Contents

1.      Introduction

2.      An Efficient and Effective Process

3.      How to make an Enforcement Complaint

4.      Service Objectives

5.      Planning Enforcement Policies

6.      Types of Enforcement Action

 

1.    Introduction

Effective enforcement underpins the whole Development Management function ensuring that unacceptable development does not prevent the delivery of the vision of the Local Planning Authority (LPA) set out in the development plan.

'Unauthorised development' is development carried out without the necessary planning permission or development carried out in contravention of a condition or limitation attached to a planning permission.

Welsh Government's Development Management Manual provides guidance on when enforcement action is appropriate:

https://gov.wales/development-management-manual

Procedural guidance describing the tools available to address unauthorised development are set out in Annex 14 of the Development Management Manual and in Welsh Office Circular 24/97: Enforcing Planning Control: Legislative Provisions and Procedural Requirements:

https://gov.wales/sites/default/files/publications/2019-05/enforcing-planning-control-legislative-provisions-and-procedural-requirements-circular-2497.pdf

This policy document does not repeat this guidance but should be read in conjunction.

 

2.    An Efficient and Effective Process

Responsibility for determining whether proposed development should be granted planning permission rests initially with the Local Planning Authority (LPA); as does the decision on whether unauthorised development should be allowed to continue or should be enforced against.

Although it is not normally a criminal offence to carry out development without first obtaining any necessary planning permission, such action is to be discouraged.

When considering enforcement action, the decisive issue for the LPA is whether the unauthorised development would unacceptably affect public amenity or the existing use of land and buildings meriting protection in the public interest. Enforcement action should be commensurate with the planning impacts caused by the unauthorised development; it is usually inappropriate to take formal enforcement action against a trivial breach of control. The intention should be to remedy the effects of the unauthorised development, not to punish the person(s) carrying out the operation or use. Nor should enforcement action be taken simply to regularise development for which permission had not been sought but which is otherwise acceptable.

The integrity of the development management 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 and 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.    How to make an Enforcement Complaint

If a person believes that there has been a possible breach of planning control, they should complete an Enforcement Complaint Form [56KB] . On completion this should be sent to:

planning.enforcement@powys.gov.uk 

or by post to:

Planning Services, Powys County Hall, Spa Road East, Llandrindod Wells, Powys, LD1 5LG

Enforcement Complaints will not be investigated without the completed mandatory form.

All complaints received will be treated as confidential and every effort will be made to ensure that the identity of a complainant remains confidential.

This information will not be given in response to a Freedom of Information Request.

 

4.    Service Objectives

We aim to:

  • Acknowledge all Enforcement complaints within 5 working days of receipt. The acknowledgement will inform the complainant of the allocated complaint reference number.
  • Have 'investigated' the complaint within 84 days. 'Investigated' means that the LPA has considered the alleged breach of planning control and advised the complainant of their investigation. The clock starts on the day that the enforcement complaint is received by the LPA. The clock stops when the LPA has concluded and notified the complainant that either:

(a)       No breach of planning control has occurred; or

(b)       A breach has occurred but planning enforcement action is not expedient; or

(c)        A breach has occurred, and planning enforcement action will need to be pursued.

  • Where a breach has occurred, and planning enforcement action will need to be pursued to resolve an enforcement complaint as soon as reasonably possible. The enforcement complaint will be resolved when one of the following positions have has been reached:

(a)       Planning permission is subsequently granted through a planning application or enforcement appeal.

(b)       An enforcement or breach of condition notice is complied with.

(c)        The breach of control is ceased by the developer owner / occupier.

(d)       Direct action by the authority removes the breach of control.

The complainant will be informed of the resolution.

 

5.    Planning Enforcement Policies

The local planning authority (LPA) 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.

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 LPA will take into account the Development Plans, the Human Rights Act 1998 and all other material considerations.

 

Policy PEP1- Where enforcement action is not expedient

In most circumstances where a breach has occurred, we will seek to negotiate to resolve the situation. In appropriate cases, we will also negotiate to achieve remedial works to remedy the breach. In these cases, providing the breach has been satisfactorily resolved, the County Council will not take enforcement action unless the breach were to persist or recur. 

It will therefore not be expedient for an Enforcement notice to be issued where:

  1. An assessment of the breach has concluded that the resulting harm is negligible or 'de minimis'
  2. A retrospective application to regularise the unauthorised development has been submitted and subsequently approved by the Local Planning Authority
  3. The breach results in only a slight variation in excess of what would have been permitted by virtue of the Town and Country Planning (General Permitted Development) Order 1995 and as amended in 2013 (or as amended thereafter)
  4. The harm was temporary and has already ceased
  5. An alternative site is discussed and a clear timeframe for the development to relocate is specified and agreed

 

Policy PEP2- Where enforcement action is expedient

Where breaches of planning control are causing significant harm to the environment or local amenity and we are unable to remedy the situation by negotiation, then we may consider it expedient to take appropriate formal enforcement action after an assessment of the breach. 

It will therefore be expedient for an Enforcement Notice to be issued where:

  1. Evidence that a breach of planning control has occurred and that it has caused demonstrable harm to interest of acknowledged importance
  2. Where an agreed timetable for relocation is ignored
  3. Unauthorised mineral working/waste disposal which is causing unacceptable harm to public amenity and there is little likelihood of the matter being resolved voluntarily or through negotiations
  4. Where a building or land is in a condition that unacceptably adversely affects the amenity of the area. Where negotiations have failed consideration will be given to serving a Section 215 notice
  5. Works to a listed building which materially affect its character and appearance
  6. Displaying of an advertisement which causes serious harm to the amenity of the surrounding area and/or represents a risk to public safety
  7. Removal of a tree subject to a Tree Preservation Order or located within a Conservation Area of amenity value. The loss of which has caused harm to the surrounding area
  8. Removal of an 'important' hedgerow in accordance with the Hedgerow Regulations 1997

 

Policy PEP3- Where unauthorised development could be made acceptable through the imposition of conditions

Where unauthorised development causes unacceptable injury to public amenity or damage to a statutorily designated site but could be satisfactorily overcome through the imposition of conditions, the Council will consider serving an Enforcement Warning Notice (EWN).

Use of an EWN to secure a retrospective planning application can ensure that an acceptable form of development is achieved without the Local Planning Authority having to over enforce.

The Council will not issue an EWN unless there is reasonable prospect of the development being granted planning permission.

The serving of an EWN by the County Council does not however guarantee that planning permission will be granted.

 

Policy PEP4 - Breach of Condition

Where planning permission has been granted for development subject to planning conditions, the conditions shall be complied with in full subject to an assessment of their appropriateness.  Where there is a failure to comply with those conditions, the Council can serve a Breach of Condition Notice or an Enforcement Notice.

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 also be considered.

There is no right of appeal against a Breach of Condition Notice and the failure to comply with such a Notice is a criminal offence.

 

6.    Types of Enforcement Action

Planning Contravention Notice (PCN)

Requires persons to divulge information in respect of land and activities. This is often the first formal step in resolving a breach of planning control.

Failure to provide information requested through a PCN can result in a fine of up to £1,000, whilst providing false information can result in a fine of up to £5,000.

 

Enforcement Warning Notice (EWN)

An enforcement warning notice (EWN) is intended for use where the LPA considers that an unauthorised development could potentially be made acceptable with control. The serving of an EWN will provide a clear signal to the developer that, if a retrospective planning application is submitted, adequate control could be applied to the development to make it acceptable. Without planning conditions, the unauthorised development is unacceptable, further enforcement action is expedient and will be taken.

 

Enforcement Notice

The most common notice used to deal with a breach of planning control. It is served when the Council is satisfied that there has been a breach of planning control and that it is expedient to take action.

An Enforcement Notice will specify the breach, the steps that must be taken to remedy the breach and a specified time period for compliance.

The recipient of an Enforcement Notice has a right of appeal to the Planning Inspectorate and can do so before the notice comes into effect.

Failure to comply with an Enforcement Notice can result in a fine, the value of which will be set by the Court.

 

Breach of Condition Notice

To secure compliance with conditions specified within a planning permission. A minimum of 28 days will be given for compliance. There is no right of appeal against a Breach of Condition Notice. Failure to comply with a Breach of Condition Notice can result in a fine of up to £1,000.

 

Stop Notice

Must be accompanied by an Enforcement Notice and served at the same time. A stop notice will ensure that any activity that may irrevocably harm the amenity, public safety or natural environment ceases. A stop notice can be used to ensure that work does not continue when an appeal is lodged against an Enforcement Notice.

Failure to comply with a Stop Notice can result in a fine, the value of which will be set by the Court.

 

Temporary Stop Notice

As above, but only valid for 28 days and cannot be re-issued following that period. This will be used when a potential breach requires immediate action and will allow the council time to investigate the potential breach.

Failure to comply with a Temporary Stop Notice can result in a fine, the value of which will be set by the Court.

 

Injunction

There may be exceptional cases where an injunction can be sought whether or not enforcement action has been taken. Due to the high costs involved an injunction is only used as a last resort and where the Council determines that other action is unlikely to succeed.

 

Section 215 Notice - Town and Country Planning Act 1990

This Notice is served on owners of buildings/land to remedy the existing condition, so it no longer adversely affects the local visual amenity. A Section 215 Notice will detail the steps require to remedy the existing condition and the timescale for compliance.

Failure to comply with a S215 Notice can result in a fine of up to £1,000.

 

Prosecution

If there is a failure to comply with a Notice, the Council may seek prosecution, which will be sought at a Magistrate's or Crown Court. A successful prosecution could result in a fine.

 

Confiscation orders under the Proceeds of Crime Act 2002 (POCA)

Once a valid effective Enforcement Notice is breached, the Council can where appropriate pursue a confiscation order under POCA. The initial preparations for the confiscation order are made in tandem with the prosecution, and an Accredited Financial Investigator will carry out all the investigations into the defendant's financial situation. Where a conviction is secured, the confiscation order process will normally commence with an application by the Local Planning Authority.

 

Offences

Unauthorised works to Listed Buildings, demolition within a Conservation Area, works to a tree subject to a Tree Preservation Order (TPO) or within a Conservation Area and displaying an Advertisement are all 'offences' under the Town and Country Planning Act 1990 and therefore could be subject to prosecution.

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