Planning Enforcement Action and Compliance for Home and House Extensions

So, what should you do? How should you react?

First of all DON'T PANIC. Recent analysis of the figures suggests that over 90% of all Planning Enforcement investigations result in a 'no breach of control' conclusion.

This is because most complaining neighbours do not understand the plans they may have seen or fail to realise what your house extension entails so they complain to the Council as their first port of call.

First you need to understand a few concepts as to what the Planning Enforcement or Compliance section is of the Planning Department. So here we go.......

Most Councils are strongly committed to the effective enforcement of planning legislation, i.e. anything which requires planning permission, but does not have it, or failing to comply with a planning condition.

In addition there are separate powers for other special controls relating to Tree Preservation Orders, Listed Buildings, Conservation Areas, Advertisements, Hedgerows and Planning Obligations to name a few.

There is no statutory requirement to investigate or take action against breaches of planning control. The Government has however published its own guidance to local authorities on how to deal with unauthorised development and our policies and procedures reflect government guidance.

The purpose of enforcement is to ensure that preventative or remedial action is taken to protect the environment/ public amenity and secure compliance with planning regulations. The aim is not to punish but to overcome harm, initially through negotiations.

This statement seeks to explain the enforcement service, to set out the service standards and to show what happens at each stage of the process. Community involvement is important to the Council and comments and suggestions on Council Services are welcomed. We hope that you will find this informative and easy to use.

Background

Within most councils one of the principal tasks of the “planning process” is to reconcile the needs for development with the protection and enhancement of the environment. This is achieved primarily through the implementation of the policies set out in the Wycombe Development Framework and Local Plan.

The effective enforcement of planning control is therefore extremely important to ensure that the environmental quality of the area and quality of life of the residents is properly protected. The enforcement of planning legislation contributes to the achievement of most Council’s Community Strategy.

The Planning Compliance Service

 Most Councils will investigate alleged breaches of planning control and has powers (which are delegated to the Head of Planning & Sustainability) to remedy such breaches by statutory and other means. It is the Policy of most Councils to exercise these powers to ensure that development takes place in accordance with the appropriate legislation, planning policy or conditions of any planning permission imposed by the Council.

This outlines the procedures and standards of service that can be expected when enquiries are made about unauthorised development under the relevant legislation, together with the pro-active compliance work we undertake to monitor that development takes place in line with the permissions granted.

Enforcement Enquiries.

Most Councils relies to a large extent on members of the public bringing alleged breaches of planning control to its attention. Breaches can take a number of forms:

• work being carried out without the benefit of planning permission:
• an unauthorised change of use:
• non-compliance with conditions imposed by planning consent: or,
• departures from the approved plans of a planning consent.

However, the aim of enforcement action is to overcome harm. This being the case, all complaints will be expected to explain the harm caused by an alleged breach of planning control. Their objective is to be fair, equitable and consistent in our approach. To assist in this process many Councils have produced a standard form for all planning enforcement enquiries. This form is usually available in the following ways:-

• On line via the councils web site.
• At the Customer Contact Centre desk at the Council Offices.
• You can telephone the council and request that a member of the Customer Services team fill the details in for you.

They expect all but very urgent enquiries (regarding on-going works to listed buildings, trees and hedges) to be submitted on this form.

All initial enforcement enquiries are in the public domain and a list of these are usually available on the Councils website (apart from the complainant’s personal details in most cases). In order to ensure that the system is fair and equitable to all, certain information MUST be provided to ensure enquiries are neither false nor malicious. Where this information is not supplied the Council reserves the right not to investigate the matter, or to give such enquiries the lowest priority.

Often the person making the enquiry will wish to remain anonymous. However, should a breach be identified, the success of any subsequent enforcement action may be limited if the complainant is not prepared to give evidence and the matter ends up at appeal or a prosecution is sought through the Courts.

In addition, in some cases, where monitoring over a period of time is required the Council may need to rely upon the public helping to provide information. In such cases, the Council will provide details of what would be helpful in the form of diary sheets and guidance notes.

In many circumstances, enquiries are received which do not concern planning matters. In such cases the enquirer will be advised accordingly and, if appropriate directed to the relevant Council department or function.

What can you expect from the Planning Compliance Service?

All valid enquiries will usually be properly recorded and investigated. Any invalid enquiries will not be investigated. The personal details of the enquirer will be held in the strictest confidence. (Although they may ask for prior permission to use your information as evidence if an appeal is made to the Planning Inspectorate or a prosecution sought through the Courts).

 Valid complaints or enquiries from the public will usually be acknowledged within the following two working days, giving the name and email address of the investigating officer.

A register of sites under investigation will normally be published on the Council’s Web Pages (in “Public Access”) and the outcome of any investigation will be posted on the register.

The enquirer will normally be updated on the progress made with the investigation and of any subsequent action that may result.

Enquirers will normally be notified of any retrospective planning applications subsequently submitted and given the opportunity to make comments (note however that all comments on planning applications are in the public domain).

Councils will not take sides in a dispute; They will however judge what action is appropriate according to the evidence, particular circumstances and relevant policies.

Everyone should receive the same standard of courteous and professional service at all times.

If the Council decides not to take action against an identified breach the reason will be clearly explained to the enquirer.

The Council will follow a similar approach to all investigations to ensure consistency in the use of our powers.

Where a breach of planning regulation has been identified they will write to the offender and state clearly what breach has occurred, the options and time scale available to resolve it and what will happen if matters are not put right.

Wherever practical an initial (time limited) opportunity will be given to the offender to resolve matters through negotiation.

What happens when an Enforcement enquiry is made.

On receipt of an enquiry it is assessed based on the information provided and its priority is determined by a Senior Officer: The Council’s enforcement resources will be concentrated on those breaches causing or having the potential to cause the most significant harm.

PRIORITY – HIGH means:-

• Irreparable harm to the environment, to the nation’s heritage or to public safety 
• Any breach of planning control in this category requires an immediate response. A
• member of the Compliance team will visit the site within one working day.
• Examples;
• Lopping or felling trees subject to legal protection,
• Unauthorised works to a Listed Building,
• Breaches of planning control which present an immediate and serious danger to the public.

PRIORITY – MEDIUM means:-

• Unless action is taken there is a risk of harm to residential amenity or material harm to the environment. A member of the Compliance team will visit the site within 10 working days 
• Example;
• Unauthorised building works or uses which have the potential to cause material
• long-term damage to the environment or to residential amenity e.g. unauthorised
• commercial activity in residential areas.

PRIORITY - LOW means:-

• Breaches of planning control appearing to cause little demonstrable disturbance to local residents or damage to the environment and do not come into either of the higher categories. A member of the team will only visit if deemed necessary, where necessary a visit will take place within 10 working days of the complaint. 
• Examples;
• Unauthorised adverts in harmless positions or temporary adverts expected to be
• removed within 28 days.
• Fences in rear gardens marginally above permitted development.
• Minor deviations to approved plans.
• The investigating officer will determine, in relation to planning legislation, whether a breach of planning control has taken place. At this stage the enquirer will be advised as to the proposed action to be taken.

It should however be noted that enforcement action can only be taken within certain time limits:

Four Year Rule: If “operational development” (i.e. building, engineering, mining or other operations) or unauthorised use of a premises as a single dwellinghouse can be shown to have occurred over 4 years ago it is immune from enforcement action.

Ten Year Rule: If any “material change of use” of land or buildings (except use as a dwellinghouse), or a breach of a planning condition can be shown to have occurred over 10 years ago they are immune from enforcement action.

Compliance.

Compliance not only includes reactive work (acting upon enquiries from the general public) but also includes proactive work (monitoring development permitted thought the application process). This all forms part of the development management process ensuring that what is built is in line with the permissions granted and any conditions imposed.

Monitoring falls into Medium or Low priority depending upon the nature of the development and its potential impact upon its surroundings.

PRIORITY – MEDIUM:

• Developments of one house or above 
• Major commercial development

PRIORITY – LOW:

• Householder extensions 
• Minor commercial development

Where a breach is established.

Where it has been established that a breach of planning control has occurred there are a range of options available to the Council. The ability to take enforcement action is entirely at the discretion of the Council and the type of action taken will relate to the nature of the breach.

The principal courses of action available to the Council are:

NEGOTIATE A SOLUTION

by informing offenders that they are in breach and asking them to stop; or attempting to rectify the breach through negotiation rather than through more formal action. Such an approach will be taken where this is seen to be the most reasonable way of dealing with a breach.

SUBMISSION OF A RETROSPECTIVE APPLICATION

suggest the submission of a retrospective planning application where it is considered appropriate;(unless the resulting harm is considered such that immediate action to remedy the breach is necessary).

Where a breach has occurred but appears to be immune from action by virtue of the time limits on enforcement action, invite a “Certificate of Lawfulness of Existing Use or Development” to establish if the matter is in fact lawful.

It should be noted that it is not an offence to carry out development without first obtaining planning permission and the Town and Country Planning Act 1990 specifically allows planning permission to be granted retrospectively.

FORMAL ACTION

determine, in the light of the evidence available, whether it is appropriate in the circumstances to take formal action i.e. serve an enforcement notice, etc. (Government advice is that we should only take action if actual harm can be shown, not simply to regularise a breach of planning control).

WHERE NO FURTHER ACTION IS PROPOSED

When it is proposed to take no further action; because no breach has been established, a minor or insignificant breach has occurred, or there is insufficient evidence to pursue the matter, the complainant will be informed and the case closed.

Priorities.

To best utilise the limited resources available to the Council, when a breach is established it will be assessed with regard to:

• any associated risks or dangers to the public,
• effect upon individuals,
• effect upon amenity, or
• any other relevant factors.
• Based upon this assessment, only those breaches which are considered to cause
• demonstrable harm will be pursued. Where it is decided that it is not appropriate in the circumstances to pursue a breach the enquirer will be notified of this.

Types of Action Available.

ENFORCEMENT NOTICE

These are by far the most commonly used methods of enforcement. Once issued the persons served with a copy of the notice have a right of appeal to the Secretary of State. Whilst under appeal the notice is suspended until the appeal can be determined.

STOP NOTICE

In certain cases these can be served in addition to an enforcement notice. They are aimed at breaches which, if left, would cause unacceptable harm whilst an appeal against an enforcement notice is pursued. Stop Notices take effect almost immediately they are served, and may be enforced by prosecution regardless of whether an appeal against the enforcement notice is pending.

TEMPORARY STOP NOTICES

These are similar to a stop notice but take effect from the moment they are served on a site. They can be served if the Council thinks there has been a breach of planning control unless that breach is the use of a building as a dwelling. They do not need to be accompanied by an enforcement notice but only last for a period of 28 days from service.

BREACH OF CONDITION NOTICE

These are a type of enforcement action specifically aimed at breaches of conditions imposed on planning permissions. Unlike enforcement notices there is no right of appeal and they are enforced by prosecution.

DIRECT ACTION

If a Notice is not complied with, the Council can take “direct action” i.e. carry out works themselves to bring a breach to an end and then recover the costs incurred. This however is expensive and requires a great deal of organisation and resources. It is only rarely seen as the most appropriate means of bringing a breach of planning control to a conclusion.

OTHERS

There are other enforcement powers in respect of protected trees, listed buildings and buildings in conservation areas, hedgerows, hazardous substances, untidy land, ecclesiastical property, and advertisements to name a few.

Court Action.

CRIMINAL OFFENCES.

Where a criminal offence has been committed, in addition to any other enforcement action, the Council will consider:

• prosecution, including applications to the Courts to take action under the
• Proceeds of Crime Act 2002
• administering a caution (this is a written acceptance by an offender that they
• have committed an offence which will be brought to the Court’s attention if the
• offender is convicted of a subsequent offence), or,
• issuing a warning.

Such action generally involves interviewing the offender under caution, and in prosecution cases the matter would be referred to the magistrate’s court, or in certain cases, for example where the Council were looking to recover money under the Proceeds of Crime Act 2002, the crown court.

The use of the criminal process is an important part of planning enforcement that aims to punish offenders and act as a deterrent to others. Most Councils recognise that prosecution is a very serious matter. A prosecution will only be commenced therefore where it is in the public interest to do so (in accordance with The Code for Crown Prosecutors 2010).

INJUNCTIONS

If the Council can show that irreparable environmental harm could result form a development, the Council can seek an injunction. This is the only enforcement method available to prevent an anticipated breach of planning control e.g. threatening to fell protected trees. It is also useful where prosecution is not considered likely to resolve the breach of control e.g. the offender will simply pay the fine and carry on.

The Powers of the Council.

While most Councils do not condone breaches of planning control it must follow government guidance in dealing with such matters. Government advice (Planning Policy Guidance Note 18) states that “in assessing the need for enforcement action, Local Planning Authority’s should bear in mind that it is not a criminal offence to carry out development without first obtaining any planning permission required for it”.

The Planning Act specifically allows for retrospective planning permission to be sought and granted. The advice goes on to state that in such circumstances, “the correct approach is to suggest to the person responsible for the development that he should at once submit a retrospective application”.

Enforcement action is discretionary and Section 172 of the Town and Country Planning Act 1990 states that the Local Planning Authority may only issue an enforcement notice where it appears to them that:

• There is a breach of planning control; and,
• It is expedient to issue the notice having regards to the provisions of the
• development plan and to any other material considerations.
• The Local Planning Authority must be seen to exercise discretion in terms of pursuing
• enforcement action and our actions have to be seen to be both reasonable and proportionate. In essence therefore in the absence of significant planning harm, or more precisely any “expediency” to enforce the Authority should not take any further action.

Relevant legislation, guidance and references.

Enabling legislation;

• The Town and Country Planning Act 1990 (as amended).
• The Planning and Compensation Act 1991.

Guidance;

• DETR, Enforcing Planning Control: Good Practice Guide for Local Authorities
• Planning Policy Guidance Note 18, “Enforcing Planning Control”.
• RTPI Advice Note 6, “Enforcement of Planning Control”
• DOE Circular 10/97, “Enforcing Planning Control: Legislative Provisions and Procedural Requirements”
• The Code for Crown Prosecutors 2010

Regulations & Orders;

• The Hedgerow Regulations 1997.
• The Town and Country Planning (Control of Advertisements) Regulations 2007.
• The Town and Country Planning (General Permitted Development) Order 1995.
• Regulation of Investigatory Powers Act 2000.
• Proceeds of Crime Act 2002 (as amended)