What action can the council take?
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. The Council has at its disposal a range of planning enforcement powers to ensure effective enforcement, including the power to take Direct Action (also known as default action).
Direct Action empowers the Council to take action in default to secure compliance with outstanding requirements of a planning enforcement or amenity notice. Where an owner or occupier of land has failed to comply with the requirements of a planning enforcement notice or amenity notice within the period for compliance specified in the notice, the Council may do the following:
- enter the land and take the steps to satisfy the requirements of the notice; and;
- recover from the person who is the owner of the land any expenses reasonably incurred by them doing so.
- A local planning authority can also prosecute for a failure to comply with a notice as well as using default powers.
7.1 The Council will first determine whether it is appropriate to take enforcement action by establishing whether a breach of control has occurred. It might be required that the Enforcement Officer will have to contact the owner/developer of the land where there is a suspected breach and try to obtain information from them to ascertain whether a breach has occurred.
If the owner/developer is unwilling to provide information it may be necessary to use statutory provisions for the requisition of information by a Request For Information S.330 Notice (RFI) where there is an alleged breach of planning control, served on those with an interest in the property/land or, when it is suspected that a breach of planning control has taken place, a Planning Contravention Notice (PCN) served on the owner and/or occupier of the property/land to obtain the facts.
7.2 Where a breach of control has taken place the Council will then make an assessment of the harm caused by the breach of control in accordance with nationally and locally adopted and emerging policy and guidance such as the National Planning Policy Framework, The Central Lancashire Core Strategy. The South Ribble Local Plan and the South Ribble Borough Site Allocations and Development Management Policies DPD.
7.3 Where an assessment is made, and it is likely that an unconditional planning permission would be granted, the person responsible would be invited to make an application for retrospective planning permission. Similarly where it is likely that planning permission may be granted subject to the imposition of conditions a retrospective application would be the most appropriate form of action.
7.4 Should a retrospective application not be received the Council will commence enforcement action where the breach of control is causing sufficient harm to justify it.
7.5 The Council can serve an Enforcement Notice on the owner and/or occupier of the land. The notice explains the nature of the breach of control, sets out what steps are necessary to put things right and a date by which this must be done. If the notice is not complied with, the Council may bring a prosecution in the Magistrates Court where there is a maximum fine of £20,000; should the case progress to the Crown Court the fine is unlimited.
7.6 In the most serious cases the Council may also consider serving a Temporary Stop Notice or a Stop Notice, or may apply to Court for an Injunction to prevent further harm being caused. This action requires those responsible to stop specified activities.
7.7 In most cases, people who receive an Enforcement Notice can appeal to the Planning Inspectorate. Appellants must set out why it is felt that the action should not be taken. An appeal is normally dealt with by an exchange of letters known as written representations. More serious or complex cases can be dealt with by an informal hearing or at a Public Inquiry led by a Planning Inspector.
7.8 The Council can also carry out other enforcement action, including:
- Service of a 'Breach of Condition Notice' where development has taken place without compliance with a condition[s] imposed on a planning permission.
- Service of a notice requiring the proper maintenance of land and buildings under Section 215 of the Town and Country Planning Act 1990.
- Prosecution in connection with unauthorised advertisement display.
- Prosecution for unauthorised work to a listed building
- Service of a 'Listed Building Enforcement Notice' where unauthorised work has taken place to a building listed as having special architectural or historic interest.
- Service of a 'Conservation Area Notice' where unauthorised demolition has taken place within a designated Conservation Area.
- Prosecution for non-compliance with a requirement to replace a protected tree.
- Prosecution for unauthorised work to a protected tree.
- Where there has been deliberate concealment of a breach of planning control, the LPA may apply to the Magistrates Court for a planning enforcement order (PEO). Where a PEO is granted, the LPA will have 1 year and 22 days to serve an enforcement notice, beginning on the day that the order is granted, irrespective of how long ago the breach first occurred. The 4 and 10 year periods for immunity will not apply in cases of concealed breach. An application for a PEO must be made within 6 months of the LPA becoming aware of the breach sufficient to justify enforcement action being taken. A Magistrates Court may only make a PEO if it is satisfied that a breach has been deliberately concealed. There is no definition of what deliberate concealment means in practice.