Planning Circular 10/2009: Planning Enforcement

INTRODUCTION

1. The Scottish Government is committed to providing a modern, effective and efficient planning system which operates in the interest of the local community and the environment. An important element of the planning system is the range of powers available to planning authorities to enforce planning control. However, those powers are only useful if they are used effectively by planning authorities.

2. This Circular and the attached annexes set out Scottish Government policy on the use of the enforcement powers contained in the Town and Country Planning (Scotland) Act 1997, as amended by the Planning etc. (Scotland) Act 2006. The general approach to enforcement of planning controls is equally applicable to other related enforcement. Specific enforcement guidance can be found in the following:

• Listed Buildings. Guidance on issuing Listed Building Enforcement Notices can be found on the Historic Scotland website at http://www.historic-scotland.gov.uk/www.historic-scotland.gov.uk/managingchange.
  
• Conservation Areas (Schedule 4 of the Town and Country Planning (Listed Buildings & Buildings in Conservation Areas) (Scotland) Regulations 1987);
• Advertisements (Scottish Office Development Department Circular 10/1984);
• Special Enforcement Notices (The Town and Country Planning (Special Enforcement Notices) (Scotland) Regulations 1992);
• Hazardous Substances Contravention Notices (The Town and Country Planning (Hazardous Substances) (Scotland) Regulations 1993); and
• Tree Preservation Orders (Scottish Office Environment Department Circular 9/1992).

3. Previous advice was contained in Circular 4/1999 which covered the powers to enforce planning control given to planning authorities by sections 123 to 158 of the Town and Country Planning (Scotland) Act 1997 (the 1997 Act). This Circular replaces Circular 4/1999, and consolidates that guidance with the amendments to existing sections of the 1997 Act and new sections introduced in the Planning etc. (Scotland) Act 2006 (the 2006 Act). Throughout the Circular references to sections of the Act refer to sections within the amended Town and Country Planning (Scotland) Act 1997 unless otherwise stated.

4. Much of this Circular and its Annexes refer to the powers and procedures available to planning authorities in dealing with planning enforcement issues. Detailed guidance on enforcement powers is set out in the annexes to this circular, as follows:

Annex A - Definitions used and time limits on Enforcement Action
Annex B - Initiation and completion of development and display of notice while development is carried out
Annex C - Notice requiring application for planning permission for development already carried out
Annex D - Planning Contravention Notices
Annex E - Rights of Entry
Annex F - Certificates of Lawful Use or Development
Annex G - Enforcement Notices
Annex H - Stop Notices
Annex I - Temporary Stop Notices
Annex J - Breach of Condition Notices
Annex K - Fixed Penalty Notices
Annex L - Interdicts to Restrain Breaches of Planning Control
Annex M - Land Adversely Affecting Amenity of Neighbourhood
Annex N - Enforcement Charters

THE GENERAL APPROACH TO ENFORCEMENT

5. The Town and Country Planning (General Permitted Development) (Scotland) Order 1992 grants planning permission to certain specified classes of development, removing the need for a planning application to be made in those cases. Any other class of development is likely to require an application for planning permission. It is for prospective developers to ascertain whether such an application is required and to ensure that an application is submitted where necessary.

6. Undertaking development without appropriate permission generally constitutes a breach of planning control and may result in enforcement action under planning legislation.

7. Nothing in this guidance should be taken as condoning any breach of planning law. Planning authorities have a general discretion to take enforcement action against any breach of planning control if they consider such action to be expedient, having regard to the provisions of the development plan and any other material considerations. When they are considering whether any particular formal enforcement action is an expedient remedy for unauthorised development, planning authorities should be guided by the following considerations:

• Planning authorities, under the provisions of the 1997 Act, have primary responsibility for taking whatever enforcement action may be necessary in the public interest, in their administrative area.
• Decisions in such cases, and any resulting action, should be taken without undue delay. Failure to do so could constitute grounds for a finding of maladministration by the Scottish Public Services Ombudsman.
• In considering any enforcement action, the planning authority, with regard to the Development Plan, should consider whether the breach of control would affect unacceptably either public amenity or the use of land and buildings meriting protection in the public interest.
• Enforcement action should always be commensurate with the breach of planning control to which it relates. For example, it is usually inappropriate to take formal enforcement action against a trivial or technical breach of planning control which has no material adverse planning implications (but see paragraph 8 below). However, planning authorities should be aware that failure to take enforcement action against a breach of planning control could be subject to a referral to the Scottish Public Services Ombudsman

8. While it is the case that it may be possible to resolve a breach of planning control through informal negotiations, particularly where the breach is relatively minor and/or unintentional, where such an approach is initially unsuccessful, further negotiations should not be allowed to hamper or delay whatever formal enforcement action may be required to make the development acceptable on planning grounds, or to compel it to stop. Planning authorities should bear in mind the statutory time limits for taking enforcement action and, in particular, the possibility that a referral to the Procurator Fiscal to determine whether to initiate a criminal prosecution may need to be made promptly in those cases where breaches have to be prosecuted within 6 months of the date on which the offence was committed. This is not the date of the alleged breach of planning control but the last date of failure to comply with the Notice requiring the breach to be remedied.

9. The integrity of the development management process depends upon the planning authority's readiness to take effective enforcement action when necessary. Public respect for the development management system is undermined if unauthorised development, which is unacceptable on its planning merits, is allowed to proceed without any apparent attempt by the planning authority to intervene before serious harm to amenity results from the breach.

10. Planning authorities have a wide choice of available options for taking enforcement action, whenever they consider it appropriate. Authorities need to assess, in each case, which power (or mix of powers) is best suited to dealing with any particular suspected or actual breach of control to achieve a satisfactory, lasting and cost-effective remedy. Rapid initiation of enforcement action is usually vital to prevent a breach of planning control becoming well established and more difficult to remedy.

WHERE DEVELOPMENT IS CARRIED OUT WITHOUT PERMISSION

11. Section 33 provides that an application for planning permission may be made retrospectively for buildings or works constructed or carried out, or a use of land instituted, before the date of the application. Furthermore section 33A (introduced by the 2006 Act) allows a planning authority to issue a notice requiring the submission of such an application. Accordingly, where the planning authority's assessment indicates clearly that planning permission should be granted for development which has already taken place, the correct enforcement approach is (assuming an informal request to submit a retrospective planning application has been unsuccessful) to issue to the person responsible for the development a notice under section 33A requiring application for planning permission for development already carried out (together with the appropriate application fee). If such a retrospective application contains unacceptable elements the planning authority may reject it or grant it subject to conditions. It may also be appropriate to consider whether any other public authority (e.g. the roads or environmental health authority) is better able to take remedial action.

WHERE UNAUTHORISED DEVELOPMENT CAN BE MADE ACCEPTABLE BY THE IMPOSITION OF CONDITIONS

12. A planning authority may consider that development has been carried out without the requisite planning permission but that the development could be made acceptable by the imposition of planning conditions (for example, to control the hours, or mode, of operation; or to carry out a landscaping scheme). In such cases the authority should require the owner or occupier of the land to submit an application through the issue of a notice under section 33A. It can be pointed out to the person concerned that the authority does not necessarily wish the activity to cease, but that they have a public duty to safeguard amenity by ensuring that development is carried out, or continued, within acceptable limits, having regard to local circumstances and the relevant planning policies.

13. Planning authorities should bear in mind the need to determine such applications in the normal way and the possible effect of such development on the functions of statutory undertakers.

14. If, after a formal notice to do so, the owner or occupier of the land refuses to submit a planning application, the planning authority should consider whether it is expedient to issue an enforcement notice. Section 128 of the 1997 Act provides that one of the purposes for which the planning authority may, in an enforcement notice, require remedial steps to be taken is for 'remedying any injury to amenity which has been caused by the breach'. For that purpose, section 128(5) provides that an enforcement notice may require, among other things, 'the carrying out of any building or other operations' (paragraph (b)); or 'any activity on the land not to be carried on except to the extent specified in the notice' (paragraph (c)).

15. Accordingly, where an owner or occupier of land refuses to submit a planning application, thereby enabling the planning authority to grant planning permission subject to conditions or limitations, the authority would be justified in issuing an enforcement notice if they consider that the unauthorised development has resulted in injury to amenity, or damage to a statutorily designated site, which can be removed or alleviated by imposing restrictions on the development.

WHERE THE UNAUTHORISED DEVELOPMENT IS UNACCEPTABLE ON THE SITE BUT RELOCATION IS FEASIBLE

16. It is not the planning authority's responsibility to seek out and suggest an alternative site to which an activity might be relocated satisfactorily. However, if, for example as part of their economic development functions, the authority is aware of a suitable alternative site, it may be helpful to suggest it and to encourage removal of the unauthorised development to that site. An authority should not suggest a site outwith its own area unless it has sought agreement from the planning authority responsible for that site. Nor should the planning authority delay the taking of formal enforcement action simply to allow the developer time to locate and propose an alternative site.

17. If an acceptable alternative site has been located, the planning authority should make it clear to the owners or occupiers of the site where unauthorised development has taken place that they are expected to relocate to the alternative site. This may be done through issuing an enforcement notice requiring relocation to the alternative site. The planning authority should set a reasonable time limit within which relocation should be completed. What is reasonable will depend on the particular circumstances, including the nature and extent of the unauthorised development; the time needed to negotiate for, and secure an interest in, the alternative site; and the need to avoid unacceptable disruption in the re-location process. Where an enforcement notice has been issued the compliance period in the notice should specify what the planning authority regards as a reasonable period to complete the relocation, in accordance with section 128(9) of the 1997 Act.

WHERE THE UNAUTHORISED DEVELOPMENT IS UNACCEPTABLE AND RELOCATION IS NOT FEASIBLE

18. Where, in the planning authority's view, unauthorised and unacceptable development has been carried out and there is no realistic prospect of its being relocated to a more suitable site, the owners or occupiers of the land should be informed that the authority is not prepared to allow the operation or activity to continue at its present level of activity, or (if this is the case) at all.

19. If agreement can be reached between the operator and the planning authority about the period to be allowed for the operation or activity to cease, or be reduced to an acceptable level, and the person concerned honours the agreement, the need for formal enforcement action may be avoided. Planning authorities need to be aware, however, of the possibility of resumption or intensification of the operation or activity after expiry of the statutory period for enforcement action. In the event of an agreement being reached close to expiry of the statutory time period for enforcement then an enforcement notice should still be served and an explanation given to the operator as to why this is being done. This will preserve the position under section 124(4)(b), as it will give the planning authority the opportunity to take further enforcement action should this be necessary in the event of the operator subsequently breaching the terms of the agreement which he has entered into with the planning authority.

20. If no agreement can be reached, the issue of an enforcement notice will usually be justified, allowing a realistic compliance period for the unauthorised operation or activity to cease, or its scale to be acceptably reduced. Any difficulty with relocation will not normally be a sufficient reason for delaying formal enforcement action to remedy unacceptable unauthorised development.

WHERE THE UNAUTHORISED DEVELOPMENT IS UNACCEPTABLE AND IMMEDIATE REMEDIAL ACTION IS REQUIRED

21. Where, in the planning authority's view, unauthorised development is unacceptable and remedial action is required, the authority should normally take vigorous enforcement action, usually through issuing an enforcement notice, but also, where appropriate, consider the use of a stop notice, temporary stop notice, or an application for an interdict to remedy the breach.

UNAUTHORISED DEVELOPMENT BY SMALL BUSINESSES OR SELF-EMPLOYED PEOPLE

22 Although some breaches of control are clearly deliberate, a planning authority may find that the owner or operator of a business has carried out unlawful development in good faith believing that no planning permission is needed. The cost of responding to enforcement action may represent a substantial financial burden on a small business, or self-employed person. Planning authorities should take this into consideration when deciding how to handle a particular case. However, where there is clear evidence of a person abusing planning legislation, and the planning authority has been unable to resolve the issue through negotiation, formal enforcement action is justified.

23. The initial aim should be to explore - in discussion with the owner or operator - whether the business can be allowed to continue on the site at its current level of activity, or perhaps less intensively. The planning authority should carefully explain the planning objections to the current operation of the business and, if it is practicable, suggest ways in which they may be overcome.

24. This may result in the grant of a mutually acceptable conditional planning permission, enabling the owner or operator to continue in business at the site without harm to local amenity. If the site's owner or occupier is at first reluctant to negotiate with the planning authority, the service of a planning contravention notice may help to convey the planning authority's determination not to allow the development to go ahead by default.

25. Before taking formal enforcement action, unless it is urgently needed, the planning authority should seek to resolve the problem through informal discussion about possible means of minimising harm to local amenity caused by the business activity; and, if formal action will clearly be needed, by discussion of the possible relocation of the business to another site. However informal discussion should not be allowed to delay formal action being taken where the planning authority consider such action is required.

26. As explained in paragraph 16, it is not the planning authority's responsibility to take the initiative in finding or providing a suitable alternative site. If formal enforcement action is likely to compel a small business or self-employed person to relocate their trading activities, the planning authority should aim to agree on a timetable for relocation which will minimise disruption to the business and, if possible, avoid any permanent loss of employment as a result of the relocation.

27. Once an enforcement notice has taken effect, planning authorities should bear in mind that, where the circumstances justify it, section 129 enables them to withdraw the notice, or to waive or relax any requirement in it, including the compliance period. A reasonable compliance period, or an extension of the initial period, may make the difference between enabling the business to continue operation, or compelling them to cease trading.

28. The Scottish Government remains committed to supporting business enterprise, provided that the necessary development can take place without unacceptable harm to local amenity. Planning authorities should bear this in mind when considering how best to deal with unauthorised development by small businesses. Nevertheless, effective enforcement action is likely to be the only appropriate remedy if the business activity is causing continuing harm.

UNAUTHORISED DEVELOPMENT BY PRIVATE HOUSEHOLDERS

29. When considering the possibility of enforcement action involving unauthorised development by a private householder, planning authorities should bear in mind that the householder may have been unaware of the need for planning permission, or may have thought the development qualified as permitted development under the provisions of the General Permitted Development Order ( GPDO).

30. Planning authorities should not normally take enforcement action in order to remedy a slight variation in excess of what would have been permitted by virtue of the GPDO provisions. However, the planning authority should take into account any third-party representations received in respect of the matter. Where the breach is clearly unacceptable, then the planning authority should generally take formal enforcement action without delay.

ENFORCEMENT OF PLANNING CONTROL OVER MINERAL WORKING

31. The general principles and policies applicable to enforcement apply equally to cases of mineral working. Nevertheless, particular problems may be posed by unauthorised developments of this type. In particular, the issue of an enforcement notice, combined where appropriate with a stop notice, may prevent damage either to the site itself or to the surrounding area, which would otherwise be irreversible or irremediable. A temporary stop notice may be used if the matter is urgent. Where necessary, planning authorities may decide to apply for an interdict.

32. Examples of situations requiring rapid enforcement action might be where a mineral operator is moving soil materials in contravention of planning conditions, so as to jeopardise the restoration and aftercare of the site; or if unauthorised excavations outside the permitted boundary cause concern for the safety and stability of surrounding land. However, it always remains preferable for liaison and contacts between planning authorities and mineral operators to be sufficiently good to avoid such contraventions, and to resolve any problems through discussion and co-operation.

THE ORGANISATION OF ENFORCEMENT FUNCTIONS BY PLANNING AUTHORITIES

33. It is for each planning authority to decide how they organise the administrative function of enforcing planning control. However, the administration should correspond to the volume and complexity of enforcement casework in each planning authority's area and be sufficiently flexible to adapt to short-term increases in the demand for enforcement.

34. All authorities should ensure that there is a close and co-operative working relationship between the Planning Department and the Solicitor's Department (or equivalent). When appropriate, Planning Departments should also liaise closely with the departments responsible for other regulatory activity, for instance; Building Standards (although the enforcement powers available to planning officials differ considerably from those available to building standards officers) and licensing of houses in multiple occupancy. Without such effective working relationships, formal enforcement action (which often depends for its success upon speed of assessment and process) may be hampered by poor communications and misunderstandings. Public criticism is then likely, especially if administrative delay means that statutory time limits for taking enforcement action have expired.

35. In the light of the changes to enforcement contained in the Planning etc (Scotland) Act 2006, all planning authorities are recommended to carry out a thorough review of their procedural arrangements for planning enforcement and, where necessary, to introduce revised arrangements. For example, consideration should be given to arrangements for issuing temporary stop notices, where these may be required to be issued outside core office hours, such as at weekends or on public holidays.

36. Previous research has indicated that effective arrangements for delegation of enforcement powers make for more effective use of powers. Delegation can be achieved by setting out clear enforcement policies in the development plan, and written procedures for enforcement action. Planning authorities have a legal requirement to prepare and publish enforcement charters which set out written procedures for enforcement.

RESPONDING TO ALLEGED BREACHES OF PLANNING CONTROL

37. Every planning authority is required to maintain an Enforcement Charter setting out their policies for taking enforcement action, as well as information on how the public can report suspected breaches of planning control and the procedure for complaints regarding the taking of enforcement action. Charters are required to be kept up-to-date through regular reviews and to be publicly available on the internet and in local libraries ( Annex M).

38. When complaints about alleged breaches of planning control are received they should always be properly recorded and investigated. If the planning authority decides to exercise their discretion not to take formal enforcement action following a complaint, they should be prepared to explain their reasons to any organisation or person who has asked for an alleged breach of control to be investigated.

39. Effective enforcement plays a significant part in protecting the rural and urban environment. In responding to complaints against unauthorised development, enforcement action maintains the integrity of the development control system. The range of enforcement powers allows the enforcement response to be more appropriate, speedier and more successful.

RECORDING OF ENFORCEMENT ACTION

40. Planning authorities are required to maintain a register recording information regarding any: enforcement notices, breach of condition notices, stop notices, temporary stop notices, and notices under section 33A (notice requiring retrospective planning application), that they issue. The exact information to be recorded varies slightly according to the type of notice. Detailed information on the information required is set out in The Town and Country Planning (Enforcement of Control) (No.2) (Scotland) Regulations 1992, as amended by The Town and Country Planning (Miscellaneous Amendments) (Scotland) Regulations 2009.

41. Every register kept by a planning authority is to be kept available for inspection by the public at all reasonable hours.

PREVIOUS CIRCULARS CANCELLED OR AMENDED

42. This Circular supersedes Scottish Executive Development Department ( SEDD) Circular 4/1999, which is cancelled.

FURTHER ENQUIRIES

42. Enquiries about the content of this Circular should be addressed to

Directorate for the Built Environment
Scottish Government
Victoria Quay
Edinburgh
EH6 6QQ

planningmailbox@scotland.gsi.gov.uk