Taking Enforcement Action
As well as enacting the Planning Legislation, Central Government also gives advice to Local Authorities on how they should use their powers. The enforcement of planning control is a discretionary power and should only be undertaken when there are clear planning reasons for doing so. It is also important to point out that it is not a criminal offence to carry out development requiring planning permission without the necessary approval; although unauthorised works to a protected tree, or to a Listed Building and fly-posting is an offence and may lead to a prosecution. It is a criminal offence not to comply within the compliance period with an Enforcement Notice which has taken effect.
If a planning application was refused, the authority of the Development Control Committee (or the Corporate Director in consultation with the Chairman and Vice Chairman through delegated authority powers) will be requested for the commencement of Enforcement Action. If no planning application was received, or if there is a serious breach where permission would not be granted, the matter would also be reported to the relevant Committee for authority to take Enforcement Action.
Taking enforcement action means the issuing of an Enforcement Notice on all those persons with an interest in the site where unauthorised activities have taken place (owners, mortgagees, companies, tenants etc.) or the serving of a Breach of Condition Notice on the person responsible for failing to comply with a condition imposed on a planning permission. Such action may also be taken against the current owner, even if the breach of planning control was carried out by a previous owner or third party. Enforcement action will only be taken where it is considered expedient to do so. Therefore, there must be some harm in planning terms.
An Enforcement Notice will specify:
- What is considered to be the breach.
- The reason why the development is unacceptable.
- The steps required to comply with the Enforcement Notice.
- The period within which the Notice should be complied with.
The Notice will come into effect at least 28 days from the date it is issued and any appeal to the Planning Inspectorate must be lodged before the expiry of this initial 28 day period. If an appeal against the Notice, is lodged, the Enforcement Action is frozen and it will not come into effect until the Planning Inspectorate have considered the appeal and then only if the appeal is dismissed. A separate leaflet is available upon request, which explains the appeal procedure.
A Breach of Condition Notice is similar to an Enforcement Notice but comes into effect immediately, as there is no right of appeal except to the Magistrates' Court. A period within which compliance should be achieved will still be specified and will be no less than 28 days.
Besides the Enforcement Notices, the Authority may consider it expedient that a specific activity should cease before the expiry of the period of compliance within an Enforcement Notice and may therefore serve a Stop Notice. This will prohibit the continuation of any such activity on the land to which the Enforcement Notice relates. The applicant has the right of appeal against the decision of the Authority to take legal action and, therefore, the Enforcement Notice is held in abeyance during this time but the Stop Notice remains in effect. Stop Notices are only issued in exceptional circumstances where time is of the essence. Compensation may be payable for losses due to a Stop Notice. The effect of prohibiting a particular activity has to be carefully examined. Alternative means of production/operation should be considered.
Time Limits - Under Section 171B of the Town and Country Planning Act 1990, enforcement action may only be taken within specified time periods. Usually, where there has been a breach of planning control consisting of building, engineering, mining or other operations in, on, over or under land without planning permission, no enforcement action may be taken after the end of four years from the date on which operations were substantially completed. Where a breach of planning control consists of the change of use of any building to use as a single dwelling house, no enforcement action may be taken after a period of four years from the date of the breach. In the case of other breaches (with the exception of works to a Listed Building where there is no time limit for enforcement action) no enforcement action may be taken after the end of the period of ten years from the date of the breach.
