Planning Enforcement Questions and Answers:-
Is planning enforcement a statutory function?
Yes, Council’s in Scotland have statutory powers to investigate breaches of planning control as well as conditions attached to planning consents. Formal enforcement action can be pursued where a satisfactory outcome cannot be achieved by negotiation.
Is planning enforcement discretionary?
Yes, planning enforcement is a discretionary power. This means that even where a breach of planning control has been identified the Council has to consider if it is in the public interest to take enforcement action.
What can planning enforcement do?
The local planning authority will consider each case on its merits and decide on the most appropriate solution. The Council is unlikely to take formal action, for example, over developments which in planning terms are seen as acceptable. It may be more appropriate, in such cases, to seek the submission of a planning application in retrospect.
Only a relatively small number of cases require formal enforcement action. This can be taken in the form of a planning enforcement notice, breach of condition notice, stop notice, temporary stop notice, fixed penalty notice, or a notice requiring an application for planning permission for development already carried out and listed building enforcement notice.
Is a breach of planning a criminal offence?
A breach of planning control is not a criminal offence. The purpose of planning enforcement is to resolve the problem rather than to punish the mistake. However unauthorised works to listed buildings can lead to a custodial sentence.
What happens if a planning enforcement notice is breached?
Failure to comply with an enforcement notice within the time specified is an offence and may lead to a fine of up to £20,000 in the Sheriff Court. Failure to comply may also result in the Council taking direct action to correct/remedy the breach.
What happens if a breach of condition notice is contravened?
Contravening a breach of condition notice can result in the Council deciding to prosecute, with a fine of up to £1,000.
What happens if a Listed Building Enforcement Notice is breached?
It is a criminal offence to undertake unauthorised works to demolish, significantly alter, or extend a listed building. In certain circumstances, unauthorised works can lead either to an unlimited fine or imprisonment.
Where can I find Scotland’s planning enforcement legislation?
Planning Enforcement powers are set out in the Town and Country Planning (Scotland) Act 1997 as amended by the Planning etc. (Scotland) Act 2006. More guidance on the use and implementation of enforcement powers can be found in the Scottish Government’s Planning Circular 10/2009: Planning Enforcement.
What is the planning enforcement register?
To comply with the Town and Country Planning (Scotland) Act 1997, the Council is obliged to keep a register of formal notices served for an indefinite period. This will provide information on recent enforcement issues that the Council has pursued and acts as an insight on how they pursue planning breaches.
Planning time limits for enforcement action?
Planning enforcement in Scotland has to be undertaken within certain time limits, otherwise, it can become immune from enforcement action.
The four-year limit/rule:- this applies to ‘unauthorised operational development’ (the carrying out of building, engineering, mining or other operations in, on, over or under land) and to a change of use to a single dwellinghouse. After four years following the breach of planning control, the development becomes lawful and no enforcement action can be taken.
The ten-year limit rule:- this applies to all other development including changes of use (other than to a single dwellinghouse) and breaches of condition. After ten years, the development becomes lawful if no enforcement action has begun.
Planning enforcement 4 or 10 years rule?
The four and ten-year planning enforcement rules in Scotland are discussed under the ‘Planning time limits for enforcement action’.(Link to 10 above)
Planning enforcement breach of condition?
Breach of Condition Notices is used to enforce the conditions applied to planning permissions in Scotland. It can be used as an alternative to an enforcement notice and is served on any person carrying out the development and/or any person having control of the land. It comes into effect 28 days after being served and there is no right of appeal.
Can you appeal a planning enforcement notice?
Enforcement Notices are generally used to deal with unauthorised development in Scotland, but can also apply to a breach of planning conditions. There are limited rights of appeal against an enforcement notice and, if an appeal is made, the terms of the notice are suspended until a decision is reached.
How long does planning enforcement take?
There is no prescribed period associated with resolving a planning enforcement matter in Scotland. Timing will come down to the way in which the Planning Authority will seek to resolve the matter, either by negotiation or formal action. Timings associated with resolution can also increase in enforcement notices are appealed.
Reporting a planning breach
Reporting a planning breach should be made in writing to the relevant Planning Authority. While issues can be raised with the Local Planning Authority over the phone they will unlikely open a planning enforcement case or investigate the issue without receiving a formal written complaint.
Some examples of planning control breaches are as follows:-
- Erection of new buildings and extensions to existing buildings without the necessary planning permission.
- Changing the use of the land or a building without the necessary planning permission.
- Carrying out works to listed buildings (internal and external) without the necessary permission.
- Undertaking building work that does not accord with approved plans or the conditions attached to the approval.
- Undertaking building work or development when pre-start conditions have not been fulfilled.
- Operating a site in breach of planning conditions (noise levels, opening times etc)
- Unauthorised removal or lopping of protected trees.
- Advertisements without the necessary consents.
The extent of information you supply to support your concerns will vary depending on the breach. However, the following is usually sought:-
- Details of the location and/or address of the property.
- Details of the alleged breach and the harm associated with the breach
- The owner’s name or the developer’s name if known.
- Photographs can also assist the investigation officer where this relates to unauthorised building work.
- Your contact details name, address and telephone number. (note that your personal contact details will remain confidential during the enforcement investigation so you cannot be identified. If the case proceeds to formal enforcement action you may be asked to disclose your identity to give evidence at a court hearing)