Enforcement action
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Introduction
Enforcement action must only be taken when the breach of
planning control is unacceptable on planning grounds and it is in
the public interest. The precise form of any action taken
against a breach of planning control is within the discretion of
the County Council, subject to Judicial Review.
Follow the links above to find out more about the
enforcement process.
Reports about the investigation of potential breaches of
planning control and about any enforcement action are presented to
the Planning Committee every 6 months, usually in January and
June. The reports are available with the
Planning Committee’s agendas and minutes.
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Informal or formal solution?
Particular attention must be paid to the need to protect
sensitive areas, sites and features that are an important part of
the natural and historic environment from any actual or potential
harm. They include Ramsar sites, Special Protection Areas,
Special Areas of Conservation, Sites of Special Scientific
Interest, Scheduled Ancient Monuments, Areas of Outstanding Natural
Beauty, conservation areas, and listed buildings.
In determining the appropriate course of action, consideration
will be given to the
'assessment criteria' (PDF, 2 pages, 48KB). In the case of
significant risk of irreversible harm to the Priority 1 areas,
formal action may be more likely than seeking informal resolution
through negotiation.
Where a breach of planning control is established, the
operator/developer, will be advised in writing of:
- the nature of the breach of planning control;
- the enforcement powers available to us;
- the nature and extent of work that we think is necessary to
address the planning breach;
- the time allowed by us to voluntarily carry out the work needed
to remedy the breach; and
- the opportunity to apply for planning permission to cover the
unauthorised development (if appropriate).
As far as possible, we will deal with an actual breach of planning
control by negotiation with the operator/developer and seek
informal resolution. In some cases, this may be through the
submission of a retrospective planning application to regularise
the activity.
Where swift action is taken by the developer to remedy breaches
of planning control, it will not normally be necessary to take
formal enforcement action. We will
avoid lengthy negotiations unless it is clear that they are likely
to lead to a satisfactory remedy.
In seeking to resolve a breach of planning control, we may
consider that a retrospective application is unlikely to be
successful. In such cases, we will give this informal opinion
to the operator/developer at the earliest opportunity so that any
necessary formal enforcement action is not prejudiced by being
delayed.
Where immediate action is required to remedy a breach of
planning control, justification will be given in writing to the
operator/developer within 5 days of the breach being
established.
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Informal solutions
Unless there is an immediate and significant risk to the
environment, negotiation and resolution by informal action will
normally be pursued prior to the taking of any formal enforcement
action. However, this is usually conditional on the
co-operation of the operator/developer and on the breach having
stopped.
Where a negotiated informal solution is sought, we will seek a
written statement of intent from the operator or developer within
two weeks of being notified of the breach of planning
control. The statement will set out the action needed to
remedy the breach in the most effective way, balancing
environmental concerns, within an agreed specified timescale.
The action should be undertaken within the agreed timescale set out
in the statement. The timescale will take account of the
complexity of the issue, and seasonal implications.
As a guide, we would expect minor breaches to be resolved within
three months of the breach of planning control being
identified. After this period, unless there are exceptional
circumstances, formal enforcement is likely to be pursued.
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Formal solutions
Any formal action that is taken will be appropriate and
proportionate. The scale and persistence/repetition of a breach of
planning control will be taken into account in determining the
nature of any enforcement action.
In deciding whether a prosecution will be undertaken, we will
adopt the principles of the Attorney General’s Guidance for
Prosecutors. (View
the Attorney General's Guidelines.)
The following range of enforcement ‘tools’ are available to us
when we decide to take formal enforcement action to deal with
breaches of planning control. To see where these tools fit within
the planning enforcement process, view our
flowchart (PDF, 1 page, 44KB).
- Breach of Condition Notice (BCN): This Notice
is only used when there is non-compliance with a condition attached
to a planning permission. The recipient has a minimum of 28 days in
which to carry out the steps required by the notice. There is no
right of appeal other than on a point of law. A failure to comply
is a criminal offence.
- Enforcement Notice: The Enforcement Notice can
be used where there is a breach of condition on authorised
development or where there is unauthorised development (if the
County Council decides a retrospective planning application is not
appropriate or an application has been refused). This Notice must
be served on the owners, occupiers, and all other parties who have
an interest in the land affected by the Notice. It specifies what
the problem is, what must be done to put it right, and gives a time
period for completion of the remedial works. It comes into effect
not less than 28 days after it is issued unless an appeal is made
against it. Any appeal stops the Notice taking effect until the
appeal is determined and, if successful, leads to the notice being
quashed. A Stop Notice can be issued to prevent continuation of any
activity up to the period of confirmation or otherwise of any
Enforcement Notice.
- Temporary Stop Notice (TSN): Legislation,
which came into force in March 2005, enables the County Council to
issue a TSN if we believe that there has been a breach of planning
control, and that it is necessary to stop the activity, or any part
of it that amounts to the breach, immediately. It is effective the
moment it is served and can be used for a maximum of 28 days,
during which time we can consider what, if any, further enforcement
action we need to take. There is no right of appeal against a TSN,
other than by way of Judicial Review.
- Stop Notice: A Stop Notice can only be used
where an Enforcement Notice has been served or when an appeal has
been lodged against the Enforcement Notice. It is used where it is
necessary to stop activities immediately where there is particular
harm to the environment or to local amenity. As compensation can be
sought against the County Council against a Stop Notice, a
financial cost benefit analysis is required prior to the serving of
the Notice.
- Injunction: Notwithstanding any other actions
being taken, an injunction (interim/emergency or final version) can
be sought from a judge sitting in either the High Court or the
County Court in order to restrain any breach of planning control
that is causing significant harm to the environment.
- Direct Action: If an operator or landowner
continues the operation or refuses to comply with the requirements
of an Enforcement Notice, the Council can, in exceptional
circumstances, take direct action to secure compliance. Direct
action is a last resort and may include the County Council:
- entering the land and taking the necessary steps specified in
the notice; and
- recovering from the person who is the owner of the land any
expenses reasonably incurred by us doing so; or
- registering a charge on the land.
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Timescales
Negotiations will be an important part of the process once the
nature of the breach of planning control has been established, and
the flexibility to focus on the particular circumstances of a case
will be essential if the best results are to be achieved.
In determining whether to pursue formal action, the timescale
taken will vary on a case-by-case basis. The emphasis will be
on balancing the urgency to remedy the planning breach with
mounting a properly constituted legal response.
Action in the courts requires evidence to prove an offence
against an individual or company ‘beyond reasonable doubt’. The
collation of such evidence is time consuming and in some cases,
pre-trial delays are unavoidable.
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Interviewing and gathering evidence
Enforcement action may lead to prosecution in either the
Magistrates or the Crown Court, for example, where an Enforcement
Notice has taken effect and has not been complied with.
When interviewing or gathering evidence, we will follow and be
bound by the Codes of Practice set out in:
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Member involvement
Formal enforcement action needs to be authorised either by the
members through the Planning Committee
or by officers acting under delegated powers.
If enforcement action has been authorised through delegated
powers, we will write a report for the Chairman of the Planning Committee setting out the facts of the
case.
We will keep the local elected Member (the County
Councillor) updated of progress during the case from the
investigation stage onwards.
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