Appendix 3: Planning Enforcement Services Pledges

The Enforcement Service Pledges

The way the Council deals with complaints is outlined above. In following this process the Council commits itself to service pledges which are a public commitment to a basic code of conduct of service delivery.  The service pledges provide the overarching service direction and context to the detailed service standards which follow on from them.

Service Pledge 1

To follow agreed procedures in resolving cases

The Council will follow the procedures below in dealing with its enforcement activities. The general approach is that any action taken will be in proportion to the scale and nature of the breach.

• Each complaint regarding a possible breach of planning control will be followed up when it is received, in accordance with the Service Standards identified in this Charter.
• The Council will investigate all written or email complaints, where the complainant provides an email or postal address to receive a written reply. Anonymous complaints will not be investigated although discretion in this may be exercised where the allegation relates to a very serious breach of control (as described in Service Pledge 4 below).
• The Council will treat the complainant's personal details, name, address, phone number and any other contact details as confidential, unless the complaint is made on behalf of a corporate body or public body such as a community council. Complainants should, however, be aware that, if the case progresses to a planning appeal, then their name and some contact details may be released by Scottish Ministers into the public domain.
• The Council will attempt to resolve the alleged breach without recourse to the service of a formal notice, but will not allow the process to be unnecessarily delayed where it appears unlikely from the outset that planning or other consent would be granted by the Council.
• Where a breach of planning control appears at face value to comply with the City Development Plan and does not unduly impact on amenity or public safety, the Council will initially invite a retrospective planning or other appropriate application to be submitted. Subsequent failure to submit an application under these circumstances may result in the service of a Section 33A Notice (See Appendix 1) which is an enforcement notice formally requiring the submission of an application.

Service Pledge 2

To take action where it is considered expedient to do so.

The Council will take formal enforcement action only where the breach is considered to have an unacceptable effect on public amenity, or where the use of land and buildings merits protection in the public interest.  Each case will be considered on its merits and the decision will be informed by the relevant policies of the City Development Plan and the degree of harm caused by the breach, assessing the impact relative to the established appearance or character of the property and area. 

Generally, a higher priority will be given to a breach where it affects the complainant's amenity in the locality of their own address.  Correspondingly, less weight will be given to complaints from one source about many similar breaches located throughout the wider area, which may have little or no direct impact on the amenity of the complainant concerned.

Service Pledge 3

To use powers which are in proportion to the harm caused by the breach  

The Council will consider the range of its enforcement powers (see Appendix 1) to remedy an unacceptable breach. The action taken will depend on the nature of the breach.  

Where an effective Enforcement Notice is not being complied with the case will be assessed in terms of further action.  Legal action may be an option but will usually only be possible where the impact of the development is unprecedented and severe enough to be considered by the Procurator Fiscal to be in the public interest to prosecute. 

Fixed Penalty Notices may be a more realistic option as these will have repercussions when a Property Enquiry Certificate is obtained by solicitors on behalf of the property owner when selling the property. The threat of the FPN may also provide leverage to bring about resolution and can be a useful tool in this way. 

Direct Action is possible where a Notice has not been complied with; but given the substantial financial cost with no guarantee of costs being recovered this may not be practical or financially feasible.   However, each case will be considered in light of prevailing circumstances at the time and all options will be considered.

Service Pledge 4

To identify cases for higher priority action

The Council will generally deal with complaints about alleged breaches in accordance with the order in which they are received except for the following which will be given priority. Where there is a conflict between priorities those cases involving the historic fabric of the City will take precedence.

• Complaints alleging conspicuous irreversible damage to listed buildings. 
• Complaints alleging breaches of control which have a severe impact on the character of a Conservation Area.       
• Complaints alleging damage to trees protected by a Tree Preservation Order (TPO), or trees in Conservation Areas.     
• Complaints alleging damage to Sites of Special Scientific Interest (SSSI), local nature reserves and other environmentally designated sites as identified in the City Development Plan.
• Complaints alleging the storage of hazardous substances.
• Complaints alleging breaches of planning control which have more than a local impact on amenity   and/or public safety.
• Non-compliance with the terms of a legal agreement entered into between the Council and a developer.

Service Pledge 5

Monitoring of Major Developments

The Planning (Scotland) Act 2019 includes the requirement for planning authorities' enforcement charters to include a statement on the authority's monitoring of compliance with planning permission for major developments.   This was to be brought into force by Quarter1 2021, although guidance which has been promised has yet to be provided.   In the meantime, the following approach will be taken:

• The Planning (Development Management) Officer handling the major planning application will receive, discharge and monitor conditions, prior to and post-initiation of the development and will be the initial point of contact for the developer.
• If the Planning (DM) Officer is unable to resolve outstanding conditions within a reasonable timescale, the planning officer will advise the developer that the matter will be referred to the Planning Enforcement Team for consideration of appropriate action.  The Planning (DM) Officer will notify the Planning Enforcement Team of the breach of condition and an enforcement case will then be logged and investigated accordingly.
• There may be a specific condition that the Planning (DM) Officer considers was pivotal to planning permission being granted and should therefore be monitored during the course of construction works such as the creation of a site access or ground remediation on a contaminated site.  Consequently, the Planning (DM) Officer may notify the Planning Enforcement Team of this and an enforcement case will be created to monitor compliance with the condition at regular intervals.  This may involve joint site visits with the Planning (DM) Officer, Planning Enforcement Officer and any other specialist area of expertise as required from within NRS to assess and assist for appropriate action.

Service Pledge 6

Communication with the subject of the complaint and the complainant

The Council will notify the owner/occupier of the property/site of the alleged breach.

• Progress updates will be provided to complainants and subjects of the complaint, at significant junctures (including closure of the case).
• Following confirmation that enforcement action is necessary, formal enforcement action will be taken where negotiations fail within a reasonable timescale.