Planning enforcement action can only be taken when something has been done without the appropriate permission/consent. Find out more about where planning permission and/or listed building or advertisement consent maybe required.
It is important to appreciate that planning enforcement action cannot be taken if the works or change of use do not require permission/consent, or if it is permitted by planning legislation. For this reason action cannot be taken on many of the reports of apparent unauthorised development the City Council receives.
It must also be understood that Parliament has decided that in law, the carrying out of unauthorised works or changes of use should not initially constitute a criminal offence, except for unauthorised works to listed buildings and the display of certain advertisements. Under current legislation, a criminal offence only arises in the majority of cases when an enforcement notice has been issued, has taken effect and its requirements have not been complied with; only when this stage has been reached can the City Council commence prosecution action in the courts.
Even when it is technically possible to take enforcement action, in law, the City Council is required first to decide whether such formal action would be 'expedient'; this means that formal enforcement action is discretionary and all the relevant planning circumstances of each case must first be considered.
Whilst Central Government advice is that ordinarily formal action should be taken as a last resort, when the breach of planning control is causing unacceptable harm or nuisance they advise that essential enforcement action should not be delayed by protracted negotiations. If a breach is unacceptable and is causing serious harm to public amenity they advise that immediate enforcement action should be taken to prevent further harm. Enforcement action must however always be commensurate with the seriousness of the breach of planning control.
The City Council investigates all reported breaches of planning control. When pursuing enforcement action, the Council gives priority to:
Many breaches of planning control are minor and formal action cannot always be justified. In other cases the change may be acceptable in planning terms and the contravener will be advised to make a retrospective application for permission or consent, possibly involving modifications to the building or restrictions on the use. In these cases any application would be the subject of the City Council's normal publicity and consultation procedures with adjoining occupiers and residents' groups prior to determination.
Except in cases where unauthorised works or uses are causing serious harm, formal enforcement action is taken only once attempts to amicably resolve the problem have been tried and have failed. Initially, the City Council must give the contravener a reasonable opportunity to make amends. If the enforcement system is to retain the public's confidence, however, warnings and negotiations must not be allowed to become protracted. When an unauthorised development is unacceptable on its planning merits and warning letters to the responsible parties fail to obtain a satisfactory remedy within a reasonable timescale, the City Council will not hesitate to initiate formal enforcement or prosecution action.
A formal enforcement notice is served on the contravener and any other party with a legal interest in the land or building in question. This notice will specify what action is required to remedy the problem and will give a period for compliance. Any recipient of an enforcement notice can, however, appeal against it to the Secretary of State. An appeal suspends a notice from taking effect. The City Council will always vigorously defend any appeal but if it is allowed (i.e. the contravener wins), no further action can be taken by the City Council. If it is dismissed, however, the enforcement notice will take effect, although the Secretary of State can amend its requirements, including the period for compliance.
After an enforcement notice has taken effect, if compliance with its requirements does not then occur within the set compliance period, a criminal offence arises. The City Council will initially give an offender notice of this offence but thereafter will pursue prosecution action without further delay. Such action in the Magistrates' or Crown Courts does, however, require evidence to prove the offence against a named individual or company 'beyond reasonable doubt'. Collecting evidence of this quality can be time-consuming and in some cases pre-trial delays may be unavoidable.
In exceptional circumstances, where unauthorised works or a use has a very serious impact upon public amenity in a locality, the Council can serve a stop notice or seek an injunction from the Courts to force the unauthorised works or use to cease immediately. An amendment to the Planning Act in 2004 has introduced temporary stop notices which when issued stop an unauthorised development or use for a period of 28 days. During this time the impact of the development or use can be assessed and consideration given to issuing a formal enforcement notice and stop notice.
The National Planning Policy Framework came into effect in March 2012 and constitutes current Central Government Guidance. The NPPF replaced previous Central Government Guidance including Planning Policy Guidance 18: Enforcing Planning Control.
“Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control. Local planning authorities should consider publishing a local enforcement plan to manage enforcement proactively, in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where it is appropriate to do so.”
If you have reported a potential breach of planning control you will immediately be sent an acknowledgement letter telling you the name and contact telephone number of the Planning Inspector who will initially be dealing with the case. The Planning Inspector will endeavour to visit the site within 5 working days to obtain detailed factual information and photographs; when works to a listed building are involved an urgent inspection will be carried out on the same day where possible.
A written report will be submitted for consideration which will determine whether any action can or should be taken. You will be advised in writing of the outcome within 8 weeks and, if appropriate, provided with the name and telephone number of the Senior Planning Officer who will subsequently be responsible for progressing the case. If no action is to be taken, a full explanation as to why this is the case will be provided. If action is to be taken, you will be informed in writing outlining when the City Council has taken formal action e.g. the issue of an enforcement notice.
The nature and length of the procedures involved may mean that you do not hear from the council for some time, however you can contact the individual Officer at any time should you require an update on progress of the investigation. The Planning Enforcement Team aims to return all telephone calls, including voicemail messages, within 24 hours where possible.
At all stages in the enforcement process the knowledge and information held by individual members of the general public and residents' groups can supplement that available to the City Council from official records and from site inspections. When reporting a potential breach of planning control it is helpful if you have as much information as possible about the current and previous situation e.g. the exact address, when activities started, the nature of the building works or use and the names, addresses and telephone numbers of known owners or other persons responsible.
Every effort is made to safeguard the confidentiality of any private individual who reports a potential breach of planning control. If an appeal is made against an enforcement notice any complainant will be notified and asked if they wish to submit additional representations or to appear independently at a public inquiry or hearing to support the City Council's case. The strength of local support is often crucial to the Council's success on appeal, but at this stage any representations must become public documents.
If it proves necessary for the City Council to commence prosecution action, the quality of the evidence needed to prove the guilt of a named individual or company is higher than that required to justify the issue of an enforcement notice against the original breach of planning control. Here the evidence of local witnesses can be of overriding importance, for example, in proving the frequency or duration of an unauthorised use and thus support the evidence that may be given by a Planning Officer on behalf of the City Council.
All reported breaches of planning control will be investigated and complainants will be kept informed of who is dealing with their case and of progress at key stages.
The carrying out of unauthorised works or uses is not initially a criminal offence (except in the case of works to listed buildings and the display of certain advertisements).
In most cases a criminal offence only arises when a formal enforcement notice has been issued, has taken effect and its requirements have not been complied with, within the timed period.
Formal enforcement action is discretionary and the City Council must be satisfied that it is expedient, having regard to all the relevant planning circumstances in each case. If initial warnings and/or negotiations fail to remedy a breach, action will not be delayed if it is required on its planning merits.
Planning enforcement action is a complex area and may take a long time if formal notices have to be issued, which can result in appeals and the need for prosecution action. Nevertheless, the City Council will vigorously pursue such action when it is warranted.
At all stages in the enforcement process, information from the general public can be of considerable help to the City Council; local support is often crucial at appeals