2. What is a breach of Planning Control?
2. WHAT IS A BREACH OF PLANNING CONTROL?
Building works, Change of use, or failure to comply with Planning Conditions
2.1 LPAs are only concerned with "development" which is defined by national legislation, namely section 55 of the Town and Country Planning Act 1990.
- Section 55(1) sets out what is "development"
- Section 55(2) sets out what is not "development"
2.2 There are 2 types of "Development":
- Operational Development, e.g. building or engineering works
- Material Change of Use, changing from one use to another e.g. residential to business
"Development" is not:
- Works which affect only the interior of the building,
- Works which do not materially affect the external appearance of the building,"
If there is no "development" there is no breach of planning control and no further action is available to the LPA under its planning powers:
No development = no breach = no action
2.3 Development needs planning permission.
There are two main types:
- Deemed permission granted under the General Permitted Development Order 1995 (GPDO) as amended known as "Permitted Development". Some permissions under the GPDO are subject to limitations and conditions. Provided the development falls within the terms of the GPDO, planning permission is not required from the LPA and there is no further action that we can take.
- Express permission (full or outline) granted following the submission of a planning application to the Local Planning Authority. Conditions need to be expressly imposed by the LPA or Planning Inspectorate on Appeal.
2.4 In summary, a breach of planning control may result from:
- Carrying out work either without planning permission, or in a way that is different to that which has been granted planning permission
- Carrying out work without compliance with planning conditions attached to a planning permission or not in accordance with the limitations and conditions set out in the Town and Country Planning (General Permitted Development Order) 1995 (as amended)
- Changing the use of land or property without planning permission or without compliance with the limitations and conditions set out in the Town and Country Planning (General Permitted Development Order) 1995 (as amended) or Use Classes Order 2005
2.5 Carrying out unauthorised "development" is not a criminal offence. More often than not, unauthorised developments can be regularized by requesting that the owner submits a retrospective planning application and where necessary the LPA will impose conditions to make the development acceptable. In other cases we will negotiate with the developer/owner to ensure the unauthorised development is removed or the use ceases or planning conditions are complied with. Where the authorised development remains we will assess the harm and as necessary serve an Enforcement Notice or Breach of Condition Notice to address the harm. In urgent cases we will consider the use of Temporary Stop Notices and/or Stop Notices.
Cases involving listed buildings
2.6 Works which affect the reasons why a listed building is listed 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 to whether to start criminal proceedings and/or serve a Listed Building Enforcement Notice to make sure that appropriate remedial works are undertaken.
2.7 The Town and Country Planning (Control of Advertisements) (England) Regulations 2007 allows the display of some classes of advertisements and signs without the need to get consent from the LPA.
2.8 Where an advertisement is being displayed without the appropriate consents it constitutes a criminal offence. Where the advertisement causes serious harm to "amenity" or "public safety" we will ask for it to be removed within a specified period. If the advertisement continues to be displayed after this time, formal prosecution proceedings will be considered.
Works to trees subject to Tree Preservation Orders or within a Conservation Area.
2.9 The Council makes Tree Preservation Orders (TPO) to keep visually important trees, particularly where they are threatened by development. Similar protection applies to trees within Conservation Area. Consent to prune or remove trees protected by a TPO will not be given unless the Council is satisfied that it would be necessary to overcome a serious safety hazard, nuisance or detriment to local character, is in the interests of the health of the tree, or is reasonable in arboriculture terms with regard to good tree management or practice . It is a criminal offence to cut down, top, lop, uproot, wilfully destroy or damage a protected tree in a manner likely to destroy it, without the Council's consent.
2.10 If work is undertaken without the Council's consent we will assess the nature of the works and if it is in the public interest to prosecute. If a tree is removed completely it will also be the duty of the landowner to plant replacement trees of appropriate size and species in the same location as soon as reasonably possible.
Unsightly land or buildings
2.11 The condition of certain buildings or land can cause harm to the visual amenity of an area and we sometimes receive complaints relating to such matters. Where the condition of land or buildings is causing significant harm to public amenity, consideration will be given to serving a notice under the S215 of the Town and Country Planning 1990. These powers can only be used in certain circumstances and not all cases are suitable. If we decide to serve a Notice it will specify measures to improve the appearance of the land or buildings. If those measures are not taken within a specified time an offence has been committed.
2.12 Often a number of people will make the same complaint. Many cases result in a finding of no breach of planning control at all; others range from small scale breaches to very serious cases.
2.13 In the end, the test of a breach of planning control is the amount of harm it causes. Harm takes many different forms. It includes the impact on visual or residential amenity, on highway safety, on the amenity of the public in general, the occupiers and users of surrounding land and buildings or the environment in general. Harm may occur through damage to the area's historic buildings and environment, for example, unauthorised work to listed buildings, or if the conditions attached to the consent are not properly complied with. The demolition of an unlisted building in a Conservation Area can also cause harm. Harm can also occur even if a development does not have any of the characteristics outlined previously. If unauthorised development undermines the policies of our Development Plan, or could set a precedent which, if repeated, would undermine the policies of the Development Plan, then planning harm is caused. An example could be an unauthorised new house in the Green Belt.
2.14 The local environment can also be harmed by not taking action, just as much as by actively undertaking unauthorised works. Where land or buildings are neglected their condition can adversely affect the amenity of the area.
2.15 Because planning enforcement operates to protect the public interest, rather than the interest of particular individuals, there are certain issues that we cannot take into account. For example;
- loss of value to property;
- competition with other businesses;
- rights to a view;
- trespass; or
- breaches of covenant.
These are not planning matters and therefore we do not include them in any assessment of harm.
2.16 There may be cases where it will be too late for us to take any further action. A breach of planning control becomes immune from enforcement action if no action has been taken within certain time limits set out in the Town and Country Planning Act, namely:
- four years from the substantial completion of operational development and from the change of use of any building to a single dwelling house, including use as flats and,
- ten years for all other breaches (i.e. change of use or breach of conditions, other than those related to use as a single dwelling house).
In essence if operational development i.e. building works took place more than 4 years ago, or a change of use of land or buildings took place more than 10 years ago, then such development would become "lawful" and immune form any planning enforcement. The planning merits do not fall to be considered in such cases.
2.17 The reasons for the time limits are that if a building has been in situ for more than 4 years without complaint or a use continued for 10 years then it is unlikely that such development has resulted in any harm.
2.18 In cases where the development may be immune from planning enforcement action we will invite an Application for a Lawful Development Certificate for an Existing use or operation or activity, including those in breach of a planning condition. The onus is on the applicant to demonstrate through the submission of evidence, such as sworn statements, photographs, receipts etc that the development is lawful. The test is "on the balance of probability". The planning merits of the case do not fall to be considered.
2.19 Certificates granted for an existing use, operation or activity will set out the precise nature of the use, operation or activity which is certified as lawful. The Certificate does not protect against the LPA taking enforcement action if the use 'materially' changes without making a planning application for it. Any significant change from what is specified may result in some enforcement action against it.
2.20 Central Government are currently reviewing this legislation and there are proposed changes in the Localism Act which if and when they come into force will have implications for assessments and the time limits on planning enforcement action. We will ensure that we will look at each new case and take action in accordance with any new provisions.
2.21. It is also possible to apply for a Certificate for a proposed use or operation. This will confirm or otherwise that the development proposed is permissible without the need to make a planning application for it, for example because the works would be "Permitted Development". Again the planning merits do not fall to be considered.