Appendix 2: The Principles Underlying Good Planning Enforcement
Expediency
Planning Enforcement is a discretionary power. This means that the council has to consider whether it is in the public interest to take enforcement action. There is no requirement for the council to take any particular course of action in response to an alleged breach, and in many cases, the most reasonable approach is to not take any action, such as if the breach is of a very small scale, does not cause harm, or enforcement action would be disproportionate.
Harm can arise through a range or combination of factors:
- Adverse impact on visual amenity
- Inappropriate development that harms the surrounding area
- Failure to comply with a condition of planning permission
- Loss of privacy or loss of natural light
- Loss of protected trees
- Irreversible damage to a listed building or demolition of a building within a conservation area
- Extremely untidy land and derelict buildings.
Harm does not include:
- Competition caused to another business
- Ownership disputes, including trespass onto land
- Loss of value to a property
Enforcement action should always be proportionate to the scale and nature of the breach of planning control and the seriousness of the harm caused as a consequence. It is important to recognise that generally, it is not a criminal offence to carry out works without planning permission.
It is however a criminal offence to do the following without consent:
- Work affecting the character of a listed building
- Felling, lopping, uprooting or wilful damage/destruction of trees protected by Order (TPO)
- Display of an advertisement requiring consent
- Failure to comply with an Enforcement Notice which has taken effect
Planning legislation enables people who have carried out unauthorised development to apply for retrospective planning permission. In dealing with such applications, the Council must consider them in exactly the same way as any other application.
There are many options available when dealing with a breach of planning control. An opportunity will always be given to allow the breach to be resolved without formal action, however, unreasonable delay should not prevent swift action where it is clearly necessary.
The most severe breaches showing flagrant disregard for the planning system and concerns regarding the impact of unauthorised development will be met with swift action, including the use of Temporary Stop Notices (stopping any unauthorised activity for 28 days to allow consideration longer term action) and through the use of Interdicts where an Enforcement Notice has not been complied with. Relatively minor breaches may be acceptable and an application will be asked for where appropriate. At the lowest end of this spectrum, technical breaches with little or no impact will not be pursued for further action. All investigations and Notices are identified on property enquiry certificates and may present problems to an owner should they wish to sell their property. Solutions to the breach are often sought at that juncture.
Whilst each situation presents its own unique circumstances, we endeavour to carry out our duties in a fair, equitable and consistent manner. We will consider each individual matter on its own merits. There will be a consistent approach to enforcement action against breaches of a similar nature and circumstance, guided by the City Development Plan and supplementary planning guidance to establish what action is required. In reaching a decision we will be mindful of advice contained within relevant government guidance as well as taking into account emerging planning appeal decisions and case law where appropriate.
Enforcement powers provide leverage to resolve breaches and are not intended to be used as punishment where planning permission has not been obtained.
In all but the most severe cases requiring immediate action, we will seek to negotiate compliance in the first instance. However negotiations will not be allowed to cause unreasonable and unjustified delay where clearly action should be taken.
The Planning Enforcement Charter explains the service which will be provided and the standards of performance that customers can expect to receive. The planning Enforcement Charter is subject to review every two years. Service standards are monitored quarterly to ensure that performance meets expectations.
Information and advice will be provided in plain language on the rules we apply. We are happy to discuss general issues, specific cases or other issues with anyone with an interest in our service, subject to GDPR (General Data Protection Regulation) and freedom of information legislation. We will keep those who submit complaints identity anonymous.
We will work with the public to address their concerns and with dealing with developers will advise them towards compliance in the spirit of cooperation. Officers contact details will be provided to enable customers to contact them directly when seeking advice and/or an update on the progress of a case. We will issue a Planning Impact Report in accordance with service standard 4.
Whilst we aim to assist wherever possible, abusive, threatening or unacceptable language or behaviour, either in person or in correspondence will not be tolerated. Such actions will be referred to the Councils Customer Care team for potential action in relation to the Councils Unacceptable Actions Policy.
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