7. Types of enforcement actions: The tools of the trade
7. TYPES OF ENFORCEMENT ACTIONS: THE TOOLS OF THE TRADE
7.1 After we have received and undertaken an investigation and established that there is a breach of planning control, we have a number of options available to assist in resolving the breach. Not all options will be suitable in each case.
7.2 Breach of Condition Notice
Served where a condition on a planning permission is not being complied with.
Requires compliance with condition within a specified timescale.
Not appealable, therefore quicker than enforcement notice, but the wording of the condition must be suitable for this form of notice.
Summary prosecution can be brought in the Magistrates' Court for the offence of contravening a breach of condition notice. The maximum penalty on conviction is a fine not exceeding "level 3" on the standard scale (currently £1,000).
7.3 Enforcement Notice
Can be served where development is being carried out without planning permission or where a condition is not being complied with.
Requires rectification of the breach within a specified timescale.
Recipient has right of appeal to Planning Inspectorate.
Direct-action powers available to Council in the event of continued non-compliance
It is an offence not to comply with an enforcement notice can be tried in the Magistrates' or the Crown Court. The maximum penalty in the Magistrates' Court is a fine not exceeding £20,000 but there is no limit on the fine that the Crown Court may impose.
Listed building enforcement notice
Similar to enforcement notice but used where works have been carried out to a listed building, either without the benefit of listed building consent or in contravention of a condition of such a consent.
7.4 Stop Notice
We can serve these with an Enforcement Notice, or after we have served an Enforcement Notice if we consider that continuing unauthorised development is causing irreparable and immediate significant harm. The Stop Notice continues to take effect even if an appeal is lodged against the Enforcement Notice.
Requires activities to cease to safeguard amenity or public safety and to prevent serious or irreversible harm to the environment.
Requires activities to cease within a minimum period of usually three days.
An offence not to comply: maximum penalty £20,000.
Carries compensation liabilities for the LPA if the Enforcement Notice is quashed, but these are not related to the planning merits of the case.
7.5 Temporary Stop Notice
We can serve these where we consider that there has been a breach of planning control, and it is necessary to stop the activity or development in question immediately to safeguard the amenity of the area. This differs from the normal Stop Notice powers as it is immediate and does not have to be accompanied by an Enforcement Notice. There is no right of appeal to the Secretary of State. A judicial review can challenge the validity and propriety of our decision.
We can commence Court proceedings where a formal Notice has been breached. In addition, in some instances we can commence legal proceedings for unauthorised works without the need to serve any formal Notices, e.g. unauthorised works to a listed building or a protected tree, or an unauthorised advertisement. Various fines apply currently:
Cutting down, uprooting or willfully destroying a protected tree £20,000.
Other works to protected tree £2,500.
Display of an advertisement in contravention of advertisement regulations: £1,000 with a further fine of £1,000 a day for continuation of the offence
We will apply two tests in cases where a prosecution appears likely, in consultation with our legal advisors:
The evidential test., Is there admissible and reliable evidence that the offence has been committed, and that there is a reasonable prospect of conviction?
The public interest test. Is it in the public interest?
7.7 Direct Action
In special circumstances and as a last resort, to make sure an enforcement notice is complied with by carrying out the required steps ourselves in default of the owner or occupier's action. Costs incurred are recoverable from the owner or we will register a charge on the property with the Land Registry.
An order of the High Court or the County Court, which can be used to restrain an actual or apprehended breach of planning or listed building control.
Used where nothing short of an injunction would be effective to restrain breaches.
Compensation implications for the LPA.
Failure to comply with an injunction can lead to an unlimited fine and/or imprisonment.
7.9 Section 215 Notices
Where when the condition of land or buildings negatively affects the amenity of an area. This requires the owners and occupiers of the land to take specific steps to secure an improvement in its appearance.
Recipient(s) have a right to appeal to a magistrates' court.
Failure to comply with the notice is an offence. We may also do the works ourselves and charge the owners.
7.10 Article 4 Directions
If the local planning authority consider the development would prejudice the proper planning of their area or constitute a threat to the amenities of their area, subject to approval from the Secretary of State "permitted development" rights under the Town and Country (General Permitted Development) Order 1995 may be removed.
(We have used these where there is a threat that Green Belt land is being sold for development plots and there is the potential for fencing and walls to be erected without the need for planning permission)
7.11 To help us find out more information, and to ensure we identify the breach of planning control and persons responsible correctly we can use other notices, which help us to obtain information, these are as follows:
7.12 Planning Contravention Notice.
Enables the local planning authority to obtain information about a suspected breach of planning control, response required in 21 days.
An offence to ignore: maximum penalty £1,000.
7.13 Section 330 Town and Country Planning Act 1990
Similar to a PCN used to obtain information, response required in 21 days.
An offence to ignore: maximum penalty £1,000
7.14 Section 16 Local Government (Miscellaneous Provisions) Acts 1976
Similar to a PCN / s330 used to obtain information, response required in 14 days.
An offence to ignore: maximum penalty £5,000