Planning Circular 10/2009: Planning Enforcement

ANNEX E
RIGHTS OF ENTRY

Provisions

1. Sections 156-158 of the 1997 Act provide planning authorities with 'rights of entry'.

Rights Of Entry Without A Warrant

2. Section 156 enables planning authorities to authorise a person to enter land, at a reasonable hour, for any of the following purposes:

• to ascertain whether there is, or has been, any breach of planning control on the land, or on any other land;
• to determine whether any of the planning authority's enforcement powers should be exercised in relation to the land, or any other land;
• to determine how any such power should be exercised; and,
• to ascertain whether there has been compliance with any requirement arising from earlier enforcement action in relation to the land, or any other land.

3. For the purpose of determining whether an enforcement notice should be issued in relation to any land, the Scottish Ministers may also authorise entry, at a reasonable hour, to that land or any other land, provided that they have consulted the relevant planning authority.

4. The powers also allow that if necessary, neighbouring land can be entered, whether or not it is in the same ownership, or is occupied by the person whose land is being investigated.

5. The provisions of section 156 state that there must be 'reasonable grounds for entering [the land] for the purpose in question'. This is interpreted to mean that the planning authority considers that entering the land is an appropriate means of obtaining the information required by the planning authority to fulfil its obligations in regard to planning enforcement.

6. Admission, under these powers, to any building used as a dwellinghouse cannot be demanded, unless the occupier has been given 24 hours notice of the intended entry.

Rights of Entry With a Warrant

7. Section 157 provides that, when there are reasonable grounds for entering land for enforcement purposes, if such entry is refused, or is expected to be refused, or the case is one of urgency, entry by warrant issued by a Sheriff is possible, subject to the following limitations:

• it only authorises entry on one occasion;.
• the entry must be within one month from the date of issue of the warrant;
• and the entry must be at a reasonable hour, unless the case is one of urgency.

Rights Of Entry: Supplementary Provisions

8. Section 158 provides that, on entering any land in pursuance of the right of entry, authorised persons must if so required, produce evidence of their authorisation and state the purpose of their entry before they enter the land.

9. The authorised person may take with them such other persons as may be necessary for the purpose of their entry.

10. It is an offence to wilfully obstruct an authorised person acting in the exercise of a right of entry. Any person found guilty of such an offence is liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.

11. If any person who enters any land in exercise of a right of entry discloses any information obtained by them while on the land about any manufacturing process or trade secret, they shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding the statutory maximum. On conviction on indictment, the penalty is a term of imprisonment not exceeding 2 years or an unlimited fine, or both. (It is not an offence to disclose information in the course of performing a duty in connection with the purpose for which entry to the land was authorised).

12. If any damage is caused to land (which includes a building) or moveable property (for example, machinery, equipment or livestock), compensation may be recovered by any person suffering the damage from the authority who gave the written authority for the entry.

13. Planning authorities are expected to take every reasonable precaution to ensure that no damage is caused to land or moveable property as a result of exercising the right of entry. As their investigations for enforcement purposes will normally be confined to a visual inspection, any consequential damage should be most exceptional.

14. On leaving the land, the authorised person must, if the owner or occupier is not then present, leave it as effectively secured against trespassers as it was found.

Rights Of Entry: Agricultural Land

15. Planning authorities should bear in mind that, in the interests of animal and plant health, it is essential that special precautions are observed when the right of entry to agricultural land or fish farms is exercised when there is an outbreak of serious disease in livestock (such as Foot and Mouth disease) or in plants. Entry may be prohibited or inadvisable on disease control grounds. Planning authority officers should contact the appropriate agencies or government departments to check that there are no restrictions in place.