Planning Circular 10/2009: Planning Enforcement

ANNEX G
ENFORCEMENT NOTICES

Provisions

1. Sections 127-129 of the 1997 Act allow planning authorities to issue enforcement notices in respect of breaches of planning control. Enforcement notices require landowners or developers who have breached planning control to correct the breach and set out the actions or work required to make development acceptable in planning terms. This can include the removal of development.

Issue Of An Enforcement Notice

2. Planning authorities may, at their discretion, issue an enforcement notice ( EN) where it appears to them that:

• there has been a breach of planning control as defined in section 123(1) of the 1997 Act (as amended by the Planning etc. (Scotland) Act 2006); and that,
• it is expedient to issue a notice having regard to the development plan and to any other material considerations.

3. Issuing a notice is interpreted as meaning that the planning authority should prepare a properly authorised document, serve it on the appropriate person(s) and retain it in their records. Copies of the notice must be served on:

• the owner and the occupier of the land to which it relates (which may well be the same person); and
• any other person with an interest in the land, if the authority considers that interest to be materially affected by the notice.

4. The notice must be served:

• within 28 days of its date of issue; and
• not less than 28 days before the date on which it is due to take effect (ie the date from which the compliance period starts to run).

5. It is important that details of every enforcement notice issued are entered in the register which planning authorities are required to keep under section 147 of the 1997 Act. Regulation 7 of the Town and Country Planning (Enforcement of Control) (No.2) (Scotland) Regulations 1992 (as amended) sets out the information that must be recorded in the register.

Content of Enforcement Notices - Identification of the Breach

6. An enforcement notice must set out clearly the matters which appear to the planning authority to constitute a breach of planning control. This must be done clearly so that the recipient(s) of the notice know(s) what those matters are.

7. The enforcement notice must also state the paragraph of section 123(1) of the 1997 Act within which the authority considers the breach to fall; i.e. whether the breach was caused by development being carried out without planning permission, or by a failure to comply with a condition or limitation, or that it relates to the failure to submit a notice of initiation of development or to display an on-site notice.

Content of Enforcement Notices - Remedial Action and Its Purpose

8. The notice must specify the steps which the authority requires to be taken , or the activities which it requires to cease, in order to wholly or partly achieve the purpose of 'remedying the breach by making any development comply with the terms, conditions and limitations of any planning permission which has been granted in respect of the land, by discontinuing any use of the land or by restoring the land to its condition before the breach took place; or remedying any injury to amenity which has been caused by the breach' (section 128(4)).

9. Examples of remedial action which the notice may require are:

• the alteration/removal of any buildings or works;
• the carrying out of any building or other operations (provided any such remedial action does not have a further detrimental affect on amenity or public interest) ;
• any activity on the land not to be carried on, except to the extent specified in the notice; or
• the modification of the contour of a deposit of refuse or waste materials on land, by altering the gradient(s) of its sides.

10. If the notice does not require the removal of any buildings or works, or the cessation of any activity, which it is entitled to require then those buildings, works or activities are treated as having been granted planning permission, provided that all the requirements which were specified in the notice have been fulfilled.

11. No procedure is specified for this 'deemed grant of planning permission', but the Scottish Ministers suggest that planning authorities should notify recipients that permission is deemed to have been granted at the time when, in the planning authority's view, the requirements of the notice have been complied with fully. The deemed grant of planning permission might also be entered in the enforcement and stop notice register.

12. Where the notice has been issued in respect of a breach of planning control consisting of the demolition of a building, it may require the construction of a 'replacement building' which is as similar as possible to the demolished building, subject to the following:

• it must comply with any requirement imposed by or under any enactment applicable to the construction of buildings;
• it may differ from the demolished building in any respect which, if the demolished building had been altered in that respect, would not have constituted a breach of planning control; and,
• it must comply with any regulations which are made for these purposes or which modify these provisions.

13. If the notice requires the construction of a replacement building this is considered as granting planning permission for the replacement.

Content of Enforcement Notices - Timescales

14. The notice must specify the date on which it is to take effect. Subject to the appeal provisions set out in the 1997 Act, the notice will take effect on that specified date. Planning authorities will be aware that the notice must allow at least 28 days between the date on which the notice is served and the date on which the notice specifies it shall take effect (section 128(8)).

15. The notice must specify the period allowed for the required steps to be taken or the specified activities to have ceased. It may specify different periods for different steps or activities. Where different periods are applied to different steps or activities, references in Part VI of the 1997 Act to compliance with an enforcement notice, in relation to any step or activity, are to the period at the end of which that step is required to have been taken or activity ceased.

Content of Enforcement Notices - Additional Requirements

16. The notice must specify any additional matters which may be prescribed. Regulation 3 of the Enforcement of Control Regulations requires each notice to specify:

• the reasons why the planning authority considers it expedient to issue the notice. The statement should explain clearly the authority's reasons for issuing the notice and, for example, may include reference to previous correspondence or negotiations over the matters covered by the notice;
• the precise boundaries of the land to which the notice relates, whether by reference to a plan or otherwise. This is best done by means of a plan attached to the notice but, where this is insufficient to identify the boundary exactly, the plan should be supplemented by a brief written description, or by an accurately surveyed drawing on a larger scale. If the precise location of a building is in doubt, the site should be surveyed before the plan is finalised.

17. Regulation 4 of the Town and Country Planning (Enforcement of Control) (No.2) (Scotland) Regulations 1992 requires that every notice served by a planning authority under section 128(12) must include an explanatory note containing:

• a copy of sections 127-129 of the 1997 Act, or summary thereof including information that there is a right of appeal to the Scottish Ministers against the notice, that such an appeal must be made in writing to the Scottish Ministers before the date on which the notice specifies it is to take effect, and the grounds on which an appeal may be brought;
• notification that appellants must submit to the Scottish Ministers, either when giving notice of appeal or within 14 days from the date on which the Scottish Ministers send them a notice so requiring them, a written statement specifying the grounds on which they are appealing against the enforcement notice and stating briefly the facts on which they propose to rely in support of each of these grounds.

Variation/Withdrawal of Enforcement Notices

18. Whether or not the notice has taken effect, section 129 provides that the planning authority may either withdraw it entirely or waive or relax any particular requirement specified in it. In particular, the planning authority may extend the period specified for compliance. Where it withdraws or varies the notice, the planning authority must immediately give notice of that action to every person who has been served with a copy of the notice or who would be served with a copy of the notice, if it were to be reissued.

19. The withdrawal of the notice does not affect the planning authority's power to issue a further notice.

Appeal against Enforcement Notice

20. Sections 130-132 of the 1997 Act have the intention of facilitating the quick and effective operation of the enforcement notice appeals procedures.

Right of Appeal

21. At any time before the date on which a notice is to take effect, a recipient or any other person with an interest in the land may appeal against the notice on any of the following grounds:

• that those matters stated in the notice have not occurred;
• that those matters stated in the notice (if they occurred) do not constitute a breach of planning control;
• that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters;
• that copies of the enforcement notice were not served as required by section 127;
• that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;
• that any period specified in the notice in accordance with section 128(9) falls short of what should reasonably be allowed.

22. An appeal must be made to the Directorate for Planning and Environmental Appeals ( DPEA) before the date specified in the enforcement notice as the date on which it is to take effect. It is vital that all intending appellants are made aware of this absolute time limit, which is invariable, because an appeal is usually the only way in which a recipient can challenge the planning authority's action in issuing the notice

23. Previously (under section 130(1)(a) of the 1997 Act) it was permitted for an appeal to be made on the grounds that, in respect of the breach to which the notice referred, planning permission ought to be granted or, as the case may be, the condition or limitation ought to be discharged. This ground for appeal was repealed under the provisions of the Planning etc (Scotland) Act 2006 and appeals can no longer be made on this basis.

24. It is of course the case that a person, on receipt of an enforcement notice may submit an application for retrospective planning permission, however this is not an appeal against an enforcement notice and therefore will not affect the date on which the notice takes effect, or the requirement to comply with the notice.

25. When a person successfully applies for a retrospective planning application, section 33(3) of the 1997 Act allows that the grant of planning permission may be backdated to the date on which the development was carried out. The 2006 Act amends section 33 of the 1997 Act (with the inclusion of section 33(4)) so that, where a retrospective planning application is granted, but an enforcement notice was at the time issued in respect of the development, then the grant of permission cannot be backdated.

Appeals Procedures

26. Detailed guidance on appeals procedures, including how to appeal and what information is to be submitted by the appellant and the planning authority, is contained in Planning Circular 6/2009: Planning Appeals.

27. On appeal, the Scottish Ministers have powers, under section 132(2)(a), to correct any defect, error or misdescription in the notice, or to vary the terms of the notice. However, these powers do not extend to the correction of notices which are so fundamentally defective that their correction would result in a substantially different notice which would cause injustice to the appellant or planning authority.

28. Most enforcement appeals are delegated to Inquiry Reporters for determination. Appeals will normally be determined through written submissions. In some cases disputes about the relevant facts may necessitate the hearing of evidence. In such circumstances, DPEA may make arrangements for an inquiry or hearing session to take place and the Reporter may decide that witnesses should be placed under oath.

29. Once the Scottish Ministers, or a Reporter exercising delegated powers, has decided an appeal, they cannot reconsider or correct it. A further appeal can be made to the Court of Session, under section 239 of the 1997 Act, within 6 weeks of the date of decision, on the ground that the action is not within the powers of the Act or that any "relevant requirement" as defined in section 239 has not been complied with.

Execution Of Works Required By Enforcement Notice (Direct Action)

30. Where a person does not fully comply with an enforcement notice, planning authorities have 'default' powers to enter land and carry out any unfulfilled requirements of a notice themselves (section 135).

31. Under section 135(10) it is an offence for any person to wilfully obstruct a person acting in the exercise of those powers. Any person found guilty of such an offence will be liable, on summary conviction, to a fine not exceeding level 3 of the standard scale.

32. The powers enable the planning authority to carry out any steps required by an enforcement notice, including steps to discontinue a use of land (which by virtue of Regulation 2(1) of the Town and Country Planning (Minerals) (Scotland) Regulations 1998, includes the discontinuance of mining operations) and any steps needed to make development comply with the terms of any planning permission which has been granted in respect of the land, or for the purpose of removing or alleviating any injury to amenity which has been caused by the development.

33. This provision does not mean that planning authorities will themselves be able to stop illegal uses of land (because only the person who is actually carrying out the use is capable of stopping it entirely). But where, for example, a storage use is required to be discontinued, and whether or not the notice specifically requires the removal of stored items, it is open to planning authorities to remove those items as a step towards discontinuing the use and continue to remove such items which may appear on the land.

Offence Where Enforcement Notice Not Complied With

34. Section 136 of the 1997 Act makes it an offence for owners of land to be in breach of an enforcement notice, although it will be a defence if they show that they did everything they could be expected to do to secure compliance. It is also an offence for those (other than the owners) who control, or have an interest in, the land to carry on any activity which is required to cease, or cause or permit such an activity to be carried on.

35. Where any persons charged with an offence have not been served with a copy of the notice, and the notice is not contained in the appropriate register kept under section 147 of the 1997 Act, it is a defence for them to show that they were not aware of the existence of the notice.

36. Where a person is in breach of an enforcement notice the planning authority may, at their discretion, take action through either the issue of a fixed penalty notice ( Annex K) or by seeking a prosecution.

37. Where a person is prosecuted for an offence they may be charged by reference to any day or longer period, and a person may be convicted of a second or subsequent offence by reference to any period of time following the preceding conviction. A person guilty of an offence under this section is liable:

• on summary conviction, to a fine not exceeding £20,000;
• or on conviction on indictment to an unlimited fine.

38. In determining the amount of any fine, the Court is to have regard to any financial benefit which has accrued or appears likely to accrue in consequence of the offence. Accordingly, planning authorities should always be ready to make available any known details about the proceeds resulting, or likely to result, from the offence, so that the Court can take account of them in sentencing.

Environmental Assessment

39. The Environmental Impact Assessment (Scotland) Regulations 1999 require that, before issuing an enforcement notice, the planning authority should consider if the development which has led to the breach of planning control comes within a description of development in either Schedule 1 or Schedule 2 of those Regulations. However, enforcement notice appeals can no longer result in planning permission being granted, as a result of the changes made by the 2006 Act. Where it appears to a planning authority that a development does not have planning consent, and furthermore that any application for planning permission might identify a need for EIA, the planning authority should consider issuing a notice under s33A of the 1997 Act requiring the submission of a planning application. On submission of such an application, the usual procedures of the EIA regulations would apply. Further advice on EIA can be found in Circular 8/2007 (Circular 8/2007, as amended by the Addendum to Circular 8/2007; The Environmental Impact Assessment (Scotland) Regulations 1999)