Planning Circular 10/2009: Planning Enforcement

ANNEX I
TEMPORARY STOP NOTICES

Provision

1. Sections 144A to 144D of the 1997 Act (introduced by the 2006 Act) allow a planning authority to issue a temporary stop notice which takes effect immediately it is issued and, unlike a stop notice, does not require the issue of an enforcement notice. The provisions regarding temporary stop notices came into effect on 3 August 2009.

2. A temporary stop notice requires the immediate cessation of an activity from the moment it is displayed on a site.

3. Typically, a temporary stop notice would be used to stop an activity that would, in the planning authority's view, cause damage to the environment and/or local amenity. The temporary stop notice might not prohibit the activity over the entire site; for example, it might instead restrict it to certain areas or times.

Temporary stop notice: contents and service

4. If a planning authority considers that;

• there has been a breach of planning control in relation to any land in it's area; and,
• the breach consists of engagement in an activity; and
• it is expedient that the activity is stopped immediately,

the planning authority may issue a temporary stop notice ( TSN).

5. This notice must be in writing and must:

• specify the activity in question;
• prohibit engagement in the activity (or in so much of the activity as is specified in the notice); and
• set out the authority's reason for issuing the notice.

6. Much of what has been said regarding the consideration of the effect on business of issuing a stop notice (paragraphs 4-8, Annex H) apply in equal measure, if not more so, to temporary stop notices. As with a stop notice there is no right of appeal, but in addition there is no 3-day 'notice period'. TSNs should only be used when a planning authority is satisfied that there is a clear and immediate need for such action.

7. In order to maximise the potential for TSNs to be used effectively and expeditiously, planning authorities should consider devolving authority to issue a notice to enforcement teams or officers, particularly in regard to arrangements for issuing TSNs outside core working hours, where it may be difficult to arrange speedy approval from more senior officers or the committee, and the benefit of a TSN would therefore be lost.

8. To serve a TSN, the planning authority must display a copy of it on the land, along with a notice stating that it is an offence (section 144B) to contravene the temporary stop notice. The notice takes effect from the time that it is so displayed, even if it is later removed. It is therefore important to ensure sufficient proof (for example, using a digital camera that displays the date and time on the image) is recorded that the notice was correctly displayed.

9. Copies of the notice may also be served on any person who, in the view of the planning authority, has an interest in the land or is engaged in the activity. Planning authorities should serve such notices wherever possible to ensure that any such person is fully aware that a temporary stop notice is in place.

Duration of Temporary Stop Notice

10. Temporary stop notices are time-limited. The maximum period a temporary stop notice can be in effect for is 28 days. The period can be shorter at the discretion of the issuing authority. Additionally, the authority can withdraw the notice at any time before it is due to expire.

11. It is not possible to issue a second or subsequent notice after the first one expires, unless between the issue of the notices the planning authority has taken some other form of enforcement action. This action must relate to the same activity as the temporary stop notice. Generally this would be through the issue of an enforcement notice and associated stop notice, but could alternatively be the granting of an interdict.

Temporary stop notices: restrictions

12. As with a stop notice, a temporary stop notice does not prohibit the use of a building as a dwellinghouse. It may be used to stop additional development of the building.

13. A temporary stop notice does not prohibit engagement in any activity which has been engaged in (whether continuously or not) for a period of more than 4 years ending with the day on which a copy of the notice is first displayed. However if the activity in question is;

• activity consisting in, or incidental to, building, engineering, mining or other operations; or
• the deposit of waste materials

then this restriction does not apply and a temporary stop notice can be issued even if the activity has been carried out on the site for more than 4 years.

14. Scottish Ministers have the power to prescribe other activities which may not be prohibited by a temporary stop notice. Planning legislation contains a commitment to equality and fairness (section 270B, introduced by the 2006 Act). Scottish Ministers are aware that for certain sections of the community, notably Gypsies and Travellers, the main residence may, for all or part of the year, be a caravan, not a building. Accordingly the Town and Country Planning (Temporary Stop Notice) (Scotland) Regulations 2009 set out that a temporary stop notice may not prohibit stationing of a caravan on land provided that:

• the caravan is stationed on the land immediately prior to the issue of the temporary stop notice; and
• the caravan is at that time occupied by a person as his main residence.

15. While a notice may not be served on a caravan already on a site, it would be possible to serve a notice prohibiting any other caravans moving onto the site. This could be seen as analogous to using a temporary stop notice to prevent construction of an extension to a dwellinghouse (where the activity being prohibited is the building of the extension, not the use of the existing structure as a dwellinghouse)

Temporary Stop Notices: offences

16. It is an offence for a person to contravene a temporary stop notice which has been served on them, or, as required for the notice to come into effect, has been displayed on the land. It is also an offence to permit or cause a contravention of the notice. For example if a landowner allowed a person to carry out an activity prohibited by a temporary stop notice, then both would be guilty of an offence.

17. An offence may be charged by reference to a day or to a period of more than a day. A person may be convicted of more than one offence if they repeatedly breach the temporary stop notice over a period of days.

18. It is a defence to prove that the temporary stop notice was not served on the person accused of contravening the notice and that he did not, and could not reasonably be expected to know of the existence of the notice. Therefore it is important that the notice is displayed in a prominent place (for example the site entrance) and to record proof that it was correctly displayed. On larger sites the planning authority may want to consider displaying several copies of the notice. As noted in paragraph 8 above it is also good practice to serve copies of the notice on individuals.

19. A person convicted of contravening a temporary stop notice is liable

• on summary conviction, to a fine not exceeding £20,000
• on conviction on indictment, to a fine

20. In determining the amount of the fine, the court will take into account any financial benefit which the convicted person has made from the activity which constituted the offence.

Temporary stop notices: compensation

21. A person who at the time the temporary stop notice is issued has an interest in the land, whether as owner or occupier or otherwise, to which the notice relates may be entitled to compensation for any loss or damage directly attributable to the prohibition effected by the notice.

22. However this only applies if either;

• the activity specified in the notice had already been granted planning permission by the planning authority; or
• a certificate of lawful use or development applied to the activity; or
• the planning authority withdraws the notice (unless the notice is withdrawn as a result of planning permission being granted after the notice had been served).

23. The likelihood of the planning authority being liable for compensation is therefore low and can be further minimised by simple checks of the planning authority's records to ascertain whether there is any current planning permission in respect of the site, and if so what activities the permission allows. In addition the provisions of section 143(3)-(7) which apply to compensation in respect of a stop notice apply also to TSNs, namely;

• If, at any time when the TSN is in force, the activity prohibited by it was a breach of planning control, the planning authority are not liable to pay compensation for any consequent loss or damages (section 143(5)(a)).
• Anyone who failed to respond to a planning contravention notice, or other statutory notice requiring information, cannot obtain compensation from the planning authority in respect of any loss or damage which could have been avoided if they had provided the information requested, or had otherwise co-operated with the planning authority when responding to the notice. (section 143(5)(b))

24. While there is a minimal risk that issuing a TSN might prompt a claim for compensation, planning authorities should not let this consideration prevent the issue of a TSN where they consider it expedient to do so to ensure compliance with planning control.