Planning Circular 10/2009: Planning Enforcement

ANNEX A
PLANNING ENFORCEMENT

Introduction

1. This annex and the following annexes B-N provide detailed procedural guidance on the use of the powers contained in the amended Town and Country Planning (Scotland) Act 1997. The topics covered include:

• Time limits on enforcement action (Section 124)
• Initiation and completion of development and display of notice while development is carried out (Sections 27A, 27B, 27C)
• Notice requiring application for planning permission for development already carried out (Section 33A)
• Planning contravention notices (Section 125)
• Rights of entry (Section 156)
• Certificates of Lawful Use or Development (Sections 150-155)
• Enforcement notices (Sections 127-139)
• Execution of works required by enforcement notice (Direct Action) (Section 135)
• Stop notices (Sections 140-144)
• Temporary stop notices (Section 144A -144D)
• Breach of Condition Notices (Section 145)
• Fixed penalty notices (Section 136A, 145A)
• Interdicts restraining breaches of planning control (Section 146)
• Land Adversely Affecting Amenity of Neighbourhood (Section 179)
• Enforcement Charters (Section 158A)

2. The information provided does not purport to offer a complete description of the provisions. Nor can it be regarded as an authoritative interpretation of the law. Its purpose is simply to summarise the main features of the legislation and to identify those provisions to which authorities may wish to give their attention.

3. The overall effect of the enforcement provisions now in force should be to enable planning authorities to take effective enforcement action more efficiently and quickly, including the investigation of suspected breaches of control.

Definitions used in connection with enforcement

4. Section 123 of the 1997 Act defines certain expressions used in connection with enforcement:

'A breach of planning control' is defined as consisting of:

• carrying out any development without the required planning permission; or
• failing to comply with any condition or limitation subject to which planning permission has been granted; or
• initiating development without giving notice in accordance with section 27A(1); or carrying out development without displaying a notice in accordance with section 27C(1)

'Taking enforcement action' is defined as issuing;

• an enforcement notice (under section 127); or
• a breach of condition notice (under section 145); or
• a notice requiring application for planning permission for development already carried out (under section 33A)

5. Section 124, which sets out time limits for taking enforcement action, uses certain expressions which require further interpretation. Matters of interpretation are for the Courts, but the following guidance gives an informal interpretation of those expressions.

6. 'Substantially completed' - no enforcement action may be taken against any breach of planning control consisting of the carrying out without planning permission of building, engineering, mining or other operations after a 4-year period beginning with the date on which operations were substantially completed. What is substantially complete must always be a matter of fact and degree and of the prevailing circumstances in any case. Therefore, it is not possible to define precisely what is meant by the term 'substantially completed'. In the case of a single operation, such as the building of a house, the 4-year period generally would not begin until the entire operation was substantially complete. Arguably, in the case of a house, it is not substantially complete until all the external walls, roof-tiling, woodwork, guttering and glazing are completed; but it might be regarded as substantially complete if only some decorating or internal plastering work remains to be done, particularly if the building has already been put to use for its intended purpose. Each case should be judged on its particular facts, with all the relevant circumstances being taken into account.

7. 'Use as a single dwellinghouse' - no enforcement action may be taken after a 4-year period beginning with the date of a breach of planning control, where that breach consists of a change of use of any building to use as a single dwellinghouse. However, it is important to recognise that a building does not become a single dwellinghouse simply because its use as such is, by virtue of the 4-year rule, immune from enforcement action. Whatever the length of time a building is used as a single dwellinghouse, it will not necessarily be regarded as being a dwellinghouse in fact: that will depend on a number of other considerations. Although there is no definition of what constitutes a dwellinghouse, it is considered possible for a reasonable person to identify one by sight. If no reasonable person would identify a particular structure as a dwellinghouse, it is justifiable to conclude, as a matter of fact, that it is not a dwellinghouse, even if it is being used as such. This is an important distinction which means that a building may be used lawfully as a dwellinghouse without acquiring the 'permitted development' rights associated with a building that is a dwellinghouse.

8. The above distinction (between use as and being a dwellinghouse) is important in circumstances where people have adapted or used unlikely or unusual buildings as their houses. However, under the terms of the General Permitted Development Order ( GPDO) it may also apply, in certain circumstances, to ordinary flats: a flat may be used as a single dwellinghouse without acquiring 'permitted development' rights, because Article 2 of the GPDO specifically excludes them from the definition of 'dwellinghouse' for GPDO purposes. The criteria for determining whether premises are being used as a single dwellinghouse should include both their physical condition and the manner of the use. For the purposes of the 1997 Act, a single, self-contained set of premises can properly be regarded as being in use as a single dwellinghouse if it meets the following criteria:

• it comprises a unit of occupation, which can be regarded as a 'planning unit' separate from any other part of a building containing it;
• it is designed or adapted for residential purposes, containing the facilities for cooking, eating and sleeping normally associated with use as a dwellinghouse;
• it is used as a permanent or temporary dwelling by a single person, or by persons living together as, or like, a single family.

9. This interpretation would exclude such uses as bed-sitting room accommodation, where the occupants share some communal facilities (eg a bathroom or lavatory) and the 'planning unit' is likely to be the whole building, in use for the purposes of multiple residential occupancy, rather than each individual unit of accommodation.

TIME LIMITS ON ENFORCEMENT ACTION

Breaches with a 4-Year Time Limit

10. Where a breach of planning control consists of the carrying out of any form of 'operational development' without planning permission, section 124(1) provides that enforcement action may only be taken within 4 years of the date on which the operations were 'substantially completed'. This provision extends to building, engineering, mining and other operations in, on, over or under the land.

11. Where a breach of planning control consists of a change of use of any building (which, for the purposes of the 1997 Act, includes part of a building) to 'use as a single dwellinghouse', section 124(2) provides that enforcement action may only be taken within 4 years of the date of the breach. This time limit applies both where the change to use as a single dwellinghouse involves development without planning permission, and where it involves a failure to comply with a condition or limitation to which a planning permission is subject.

Breaches with a 10-Year Time Limit

12. Where there is any other breach of planning control - i.e. a breach involving any material change in the use of land (other than a change to use as a single dwellinghouse) either without planning permission, or in breach of a condition or limitation to which a planning permission is subject - section 124(3) provides for the 10 year time limit on enforcement action to apply.

Time Limits on Supplementary Enforcement Action

13. The time limits outlined above apply to the 'first' taking of enforcement action in respect of a breach of planning control. However, in the circumstances described below it is possible to take supplementary enforcement action outwith the normal time limits.

14. Section 124(4)(a) provides that the time limits do not prevent the service of a Breach of Condition Notice if there is already an effective enforcement notice in force in respect of the breach. The planning authority may therefore serve a breach of condition notice in these circumstances, even after the normal time limit for taking enforcement action has expired.

15. Section 124(4)(b) caters for another situation in which enforcement action can be taken outwith the normal time limits. It provides that the time limits do not prevent the taking of further enforcement action in respect of any breach of planning control if, during the period of 4 years ending with that action being taken, the planning authority have taken or purported to take previous enforcement action in respect of the same breach. This mainly deals with the situation where earlier enforcement action has been taken, within the relevant time limit but, for whatever reason, further action is required even though the normal time limit for such action has since expired. In this event, the planning authority now has a further 4 years, after their initial, or most recent, enforcement action, in which to take further enforcement action. An example would be where a notice issued under section 33A (requiring submission of a retrospective planning application) has been ignored and the planning authority considers it necessary to issue an enforcement notice.