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Planning Enforcement Strategy

A Strategy and Service Charter for Planning Enforcement 2011

Introduction and Background

There is increasing public concern about activities that harm the local environment and damage the quality of people's lives. We recognise the importance of establishing effective controls over unauthorised development to assist in the conservation of the natural and built environment and to protect the quality of people's lives.

The enforcement service must demonstrate at all times that it deals with cases in an equitable and consistent manner. This strategy aims to explain how the service operates and how the demands placed upon it are balanced against the available resources.

Objectives For The Service

Powers to enforce planning controls are provided within the Town and Country Planning Act 1990 (As Amended), the Planning and Compensation Act 1991 and Control of Advertisements Act 1969 (As Amended). The aim of this strategy is to identify local priorities for enforcement action, so that our scarce enforcement resources are put to the best use and enables us to focus on what matters with clear and consistent priorities to drive performance. It is also a key task within the Planning Service's Improvement Plan.

Government Guidance set out in Planning Policy Guidance Note 18 sets down clear advice as to when enforcement should be taken and the general approach to enforcement. The primary function of enforcement action is to protect the environment in the public interest. The statutory framework and the main principles of planning enforcement are set out in Annex A.

The Community Strategy and our Corporate Strategy identifies across its four corporate priorities the need to care for the environment to protect and enhance the quality of the natural and built environment by building sustainability into policies and activities. Enforcement underpins this vision of protecting the countryside and preserving the local distinctiveness of the area, and is one of the means at our disposal for achieving these aims.

In line with our aspiration to become a high performing authority a supporting objective and key priority is effective local enforcement to ensure a robust, fair and rigorous approach.

All the above inform the Strategy and help to identify what is achievable within current legislation and Government guidance, available resources and to focus on what matters with clear and consistent priorities to drive performance.

The strategy identifies the resources and matches these with local priorities for action, in order to tackle the most serious planning enforcement problems that arise in the area. To do this we will follow government advice and concentrate our resources on clearly defined priorities for action and promote a proactive regime where possible.

Therefore, the aims of the Planning Enforcement Service are to:

Enforcement Service Resources And Workload

The Enforcement Service is managed by the Development Manager and comprises of a small specialist team of 2.3 FTE officers, together with support from Development Management Officers equivalent to approximately 1FTE officer, and further support from Conservation/Design officers and the Planning Administration Team when required. A 0.5 FTE officer is also employed to monitor S.106 agreements (see paragraph 5.2 on proposals to enhance the S.106 monitoring service). The service also employs a tree consultant on a one-day-a-week contract.

The majority of complaints received relate to minor matters and often arise from neighbour disputes. Examples of these are small extensions and outbuildings erected under permitted development rights, which do not require planning permission. Considerable officer time is taken up in investigating these, visiting the site and checking dimensions and reporting back to the parties involved.

Similarly, a large number of complaints concern unauthorised development that is acceptable and can be regularised by the submission of a retrospective planning application. A great deal of officer time is spent chasing such applications and any fees derived from the submission of an eventual planning application would not, in most cases, recover the enforcement costs involved. Therefore, we have a duty to investigate all alleged breaches, the resources must be used wisely to allow officers to concentrate on serious breaches and to avoid the Local Planning Authority coming into disrepute through abuse of its enforcement powers, rather than pursuing enforcement action against minor breaches that cause no harm to public amenity.

Procedures For Dealing With Planning Enforcement Cases

The attached Customer Charter in Annex B sets out the procedures for dealing with an enforcement case.

We accept that a rapid initiation of enforcement action is vital to prevent a breach of planning control from becoming well established and more difficult to remedy. It also recognizes the need of establishing effective controls over unauthorised development. We will not condone wilful breaches of planning control and will exercise its discretion to take enforcement action if it is expedient to do so. We will investigate alleged breaches of planning control to determine whether a breach has occurred and if it has, to determine the most appropriate course of action by:

In order to deal effectively with the large number of allegations about breaches of planning control, it is proposed that cases are given priority based on the seriousness of the breach as set below:

PriorityAction
A - Major First site visit within two working days of receipt of complaint - performance standard 98%
  • works that are irreversible or irreplaceable and constitute a serious breach
  • demolition of listing building
  • breaches of Article 4 Direction
  • unauthorised development in conservation area, Special Protection Area, Area of Outstanding Natural Beauty or other national landscape designations
  • injunction proceedings
  • the felling of trees covered by a TPO or works to trees in conservation areas.
B - Medium First site visit within five working days of receipt of complaint - performance standard 90%
  • activities that cause harm to residential amenity
  • change of use
  • general development
  • breach of condition (depends on seriousness of the breach)
  • non-compliance with plans
  • non-detrimental works to a listed building
  • siting of caravan or mobile home
  • non-compliance with enforcement/stop notice
  • unauthorised works to a listed building.
C - Minor Site visit within ten working days of receipt of complaint - performance standard 90%
  • a-boards on private land
  • sheds
  • means of enclosure
  • dropped kerbs
  • satellite dishes
  • minor operations
  • any low impact to residential amenity
  • unauthorised adverts .

Planning and Listed Building legislation gives authorised officers extensive rights to enter land and buildings, at any reasonable hour, to carry out investigations and other duties. Because of the nature of enforcement work, it is often not prudent or possible to give advance notice of an intended visit. Only where it is considered necessary and appropriate will 24 hours notice be given if access is required to a dwelling house.

On site visits officers will have regard to the Human Rights Act 1998 (HRA), the Regulation of Investigatory Powers Act 2000 (RIPA) and the Police and Criminal Evidence Act 1984 (PACE), as well as any Act(s) that amend or revoke this legislation or become relevant. An officer may, where she/he considers an offence has occurred, interview an alleged Contravener 'under caution' PACE) where appropriate. They will work within the principles of the Concordat and seek the full co-operation of the owner/ occupiers. If access is denied we may consider seeking warrant entry. Refusal of entry (to an officer exercising their right of entry in accordance with their powers) will be regarded as wilful obstruction and the person may be prosecuted.

After the first site visit (and also during the investigation process) the investigating Officer will consider whether it is necessary to re-consider the prioritisation of the complaint.

We will not tolerate any of its staff being threatened with or subjected to physical or verbal abuse in the course of the performance of their official duties and will take appropriate legal action where necessary.

Consideration is being given to the introduction of an on-line complaints service, and this has been included as an action in the Service Improvement Plan 2011-2013.

Compliance Monitoring Service

Given the limited resources available to deal with planning enforcement issues, the focus of the service will be dealing with complaints and consequential enforcement actions arising - a reactive service. However, where capacity allows monitoring will be undertaken on major sites in terms of checking whether they are being carried out in accordance with agreed plans and conditions. This limited more pro-active work will be undertaken on an ad hoc basis as resources allow.

It is intended to have in place a full time S.106 (Planning Obligations) Monitoring Officer funded partly through the collection administrative and monitoring fees arising from S.106 agreements by the end of the year. The appointed officer will use a new database to continually monitor progress on S.106 agreements and to ensure that monies are collected as required as permitted developments build out to completion.

There will be a need to ensure that the monies collected and distributed to the various implementing agencies are also monitored to ensure they are being spent on new infrastructure and services associated with the impacts of the new development. Consideration will need to be given to how the database can be made available for Councillor and / or public viewing taking into account the practicalities and associated costs that may be involved.

Dealing With Prosecutions

In accordance with enforcement legislation as set out in Annex A, we will follow the relevant policy advice and best practice when undertaking enforcement action, and deciding whether it is expedient to take formal action. The general principles relate to two critical tests, evidential and public interest. A criterion for deciding whether it is in the public interest to prosecute is attached at Annex A.

The Enforcement Strategy has been drawn up with the principles of the Government's Enforcement Concordat in mind. Details of this Government Document are at Annex A. The adoption of the Planning Enforcement Strategy will address all these issues, and make the planning enforcement service more transparent to its users.

There is a need to achieve a reasonable balance between protecting amenity and other planning interests of acknowledged importance, and enabling acceptable development to take place, even though it may initially have been unauthorised. Equally, enforcement should not be used as a punishment for having carried out development without permission, but rather as a way of responding to development that would have been refused planning permission because it is unacceptable.

We also monitor major development sites to ensure that development is carried out in accordance with the approved plans and planning conditions are fully complied with as required (but please note also Paragraph 6.1 above).

The enforcement process, involving the investigation of complaints about unauthorised development, is set out in Annex B. This describes the main features of the service and the standards we have set ourselves for the various actions we take.

As the enforcing authority we will use discretion in deciding whether to initiate prosecution. Other approaches to enforcement can often achieve compliance with the regulations but where circumstances warrant it action will be taken through the Courts to have the work put right and/or fines levied for contravention of the Regulations.

As the enforcing authority we will consider prosecution when:

Monitoring Performance

The performance of the enforcement team is to be monitored using the following revised local performance indicators as already set out in paragraph 4.3.

CategoryPerformance standardPerformance target
A - Major First site visit within two working days of receipt of complaint 98%
B - Medium First site visit within five working days of receipt of complaint 90%
C - Minor First site visit within ten working days of receipt of complaint 90%

Other additional indicators could also be used to monitor the service's performance, including:

[1] The definition of 'resolving' would normally mean the formal closure by an officer of a case with an affirmative decision made; or where we have received a valid retrospective planning application with the aim of regularising the unauthorised development.

These measures have not been monitored previously and will be dependant upon new recording system being able to provide the information and being able to record case start and closure times. Therefore this measure will be subject to review by June 2012.

It is anticipated that the Strategy will be reviewed on an annual basis reporting through to the Planning Committee and the Executive Member for Sustainable Planning every October in advance of the drafting of service plans and budgetary cycle. The review will provide an overview of the workload undertaken, including:

Additional to the annual review, reporting on all active cases which have exceeded 3 months will be reported to the Sustainable Planning Portfolio Holder on a quarterly basis.

The status of this strategy is guidance and if there is conflict between this strategy and national legislation or policy, then the national legislation or policy will prevail.

Annex A

Summary of the Legislation and Government Policy on Planning Enforcement

Regulations

The power to take enforcement action is discretionary and comes from section 172 of the Town and Country Planning Act 1990. Advice on the legislative provisions and procedural requirements is contained in Department of the Environment circular 10/97.

Regard must be given to section 73A of the Town and Country Planning Act 1990, as amended. This provision enables planning permission to be granted for building works or changes of use undertaken without planning permission. The Government's Good Practice Guide states:

'Our approach to enforcing planning control over unauthorised development should not therefore be stricter, for planning purposes, than it would be when considering the merits of a prior application for planning permission before development starts. The authority should not use their enforcement powers solely to compel someone who has carried out unauthorised development, which is acceptable on its planning merits, to pay the planning application fee the authority would have received if an application had been submitted to them'.

Policy Guidance

The approach that should be taken is set out in Planning Policy Guidance Note 18 -Enforcing Planning Control. Local Planning Authorities (LPAs) must have regard to this guidance in deciding whether enforcement action is expedient to remedy a breach of planning control, where earlier attempts to do so by informal negotiation have proved unsuccessful. The decisive issue should be whether the breach of control would unacceptably affect public amenity or the existing use of land and buildings meriting protection in the public interest. The factors to be taken into account are:

Best practice advice is set out in Enforcing Planning Control: Good Practice Guide for Local Planning Authorities published in 1997. This is a practice manual for LPAs on all aspects of enforcement work. It covers the fundamental requirement such as:

LPAs must work within the legislative framework, having full regard to relevant judicial authority, appeal decisions and national policy guidance. Careful consideration has to be given to other legislation that impacts on enforcement work, such as the Human Rights Act 1998, the Race Relations Act 1976 the Police and Criminal Evidence Act 1984 and the Regulation of Investigatory Powers Act 2000 (RIPA). These militate against resolving cases quickly, as thorough investigation of the full facts and assessment of all the circumstances are required prior to formal action.

What Is A Breach Of Planning Control?

A breach of planning control is defined in the Town and Country Planning Act as:

"the carrying out of development without the required planning permission, or failing to comply with any condition or limitation subject to which planning permission has been granted" (Section 171A).

In addition to the above and for the purposes of this Strategy the Borough Council considers that breaches of planning control can include:

Enforcement Notices

It should be noted that in the majority of cases it is not an offence to carry out development without planning permission. An offence in law only occurs if we have taken formal civil action (e.g., by serving a Notice) and the recipients have failed to comply. It is thus necessary for the Planning Authority to first issue a formal Notice.

The recipient of a Notice has a right of appeal to the Secretary of State against the issue of the Notice or its terms, and to make an application for costs in the course of doing so, which would be considered on the basis of unreasonable action taken by the Authority. It must be appreciated that if an appeal is made, this inevitably leads to delays in bringing a matter to Court or reaching any conclusions.

Injunctions

In certain exceptional cases the Planning Authority will seek to obtain an injunction using powers laid out in Section 187B of the Town and Country Planning Act 1990. Such applications are made to the County or High Court, and it is for the Court to decide what is appropriate to restrain any breach of planning controls.

Failure to comply with such an Injunction can result in an unlimited fine or imprisonment. An Injunction can be issued against a person whose identity is unknown, as long as she/he/they can be identified by some other means.

In the case of unauthorised advertisements, works to protected trees or listed buildings it is possible to proceed directly to the Courts with a prosecution case.

(a) Listed Buildings

A person is guilty of an offence under Section 9 of the Planning (Listed Buildings and Conservation Areas) Act 1990 if unauthorised works to a Listed Building which would affect the character of the listed building as a building of special architectural or historic interest are carried out without the Local Planning Authority's consent or if works are carried out without complying with a condition attached to a consent. There is no time limit on bringing a prosecution, in cases affecting Listed Buildings.

Thus the current owner of a Listed Building or those who have an interest in the property or who have carried out the works may be prosecuted by the Council irrespective of whether listed building consent is later obtained or the unauthorised works are later made satisfactory. A person found guilty of an offence may be liable to a fine of up to £20, 000 for each separate offence and/or a term of imprisonment of up to two years.

In addition, the Planning Authority may consider it expedient to issue a Listed Building Enforcement Notice, to require remedial works to be carried out. The decision whether to prosecute and or issue an enforcement notice will be based on guidance in the government's document "Best Practice Guidance - Listed Buildings Prosecutions" December 2006.

(b) Advertisements

Anyone who displays an advertisement without the appropriate consent is open to a prosecution in the Magistrates' Court for an offence under Section 224(3) of the Town and Country Planning Act 1990. Unless the offence is particularly flagrant or repeated, the Planning Authority may not initially consider it necessary to prosecute for an advertisement offence. The maximum fine on conviction is currently £1, 000 with an additional daily fine of one-tenth of the maximum penalty if the offence continues after conviction.

(c) Trees

The Planning Enforcement Team works closely with the Council's specialist Tree Consultant on all arboricultural matters. The Tree Consultant should be consulted for advice before any works are carried out to all protected trees, and to any trees in a Conservation Area.

Unauthorised works to trees protected by a Tree Preservation Order or within a Conservation Area can result in fines up to £20, 000. Notices can also be served by the Local Planning Authority requiring the replacement of protected trees that have been felled.

Formal Notice must be given to the Local Planning Authority before works are carried out to most trees in a Conservation Area. In these cases the Planning Authority has powers to serve Notices requiring replacement trees.

(d) High Hedges

The Planning Service is also responsible for dealing with complaints under the Anti Social Behaviour Act 2003 regarding high hedges. There is, however, a charge for this service and persons wishing the Council to undertake this work should first seek further information from the Council. Where appropriate, Remedial Notices can be issued, requiring a hedge to be reduced in height or to be managed in accordance with a long term maintenance plan. The Borough Council will obtain specialist arboricultural advice before issuing any Remedial Notice. Complainants should also initially try to resolve these matters through the Swale Mediation Service. The service can be contacted on 01795 471 415.

Principles of Planning Enforcement

The enforcement of planning control rests on three fundamental principles, namely that:

Local planning authorities' enforcement powers are discretionary. This provides flexibility to tailor their approach to each case to fit the nature and circumstances of the breach or alleged breach. Minor breaches can often be resolved informally through negotiation and persuasion; more complex cases, or where there is clear and deliberate abuse of the system, may require formal enforcement action. If enforcement became a duty this flexibility would be lost and difficulties would be created. But some argue that this discretion leads to inconsistencies of approach both within and between authorities, in the enforcement system, and in the planning system as a whole.

Parliament has given to local authorities the primary responsibility for taking whatever action may be necessary in the public interest. Local planning authorities have a duty to consider taking enforcement action. PPG18 advocates this, and also adopting a proactive approach. There is a risk that the enforcement system would fall into disrepute if all breaches of planning control were enforced against, no matter how trivial. This would place an intolerable burden on local authorities, and could impact similarly on the Planning Inspectorate and the Courts. There are always cases where development is ultimately in the public interest even if it is unlawful.

Annex B

Swale Borough Council Planning Enforcement Service

Customer Charter

This document sets out what can be expected from enforcement officers and other officers of the Council's Planning Enforcement and Compliance Service.

The Council has adopted a Planning Enforcement and Compliance Strategy, that aims to

Procedures for Dealing with Planning Enforcement Cases

Most investigations result from complaints from the public, Councillors or Parish and Town Councils. All these individuals and groups have a role to play in planning enforcement, as they are the local 'eyes and ears' of the Planning Authority in the community. Their contribution towards planning enforcement is greatly appreciated by the Borough Council.

How to make a complaint /raise a concern

The Planning Enforcement Team can be contacted by letter, telephone, email or in person. It is best to make an appointment if you wish to speak to an officer in person. The appointment can either be at Swale House, Sittingbourne or, in certain circumstances, home visits can be arranged.

Written enquiries are preferred and in all cases we need the following information:

All investigations are carried out on a strictly confidential basis and the details of the person who has complained will not be revealed by the Planning Enforcement Team, unless directed to do so by a Court.

How we handle the information we receive

There is a need to prioritise initial responses to complaints. Site visits and any action that needs to be taken will be prioritised according to the degree of harm that is likely to be caused to the amenity in question and how significant an alleged breach of planning control has been reported. As formal action will only be taken where the alleged breach would warrant a refusal of planning permission that could be supported on appeal, the fact that enforcement action is discretionary also needs to be taken into account.

When Enforcement and other Officers visit a site they will identify themselves and explain the reason for their visit. The owner/occupier or people working on site may be interviewed to obtain factual information, and photographs and measurements may be taken if required. A detailed note will be made on the investigation file, which is used to record all visits and discussions at meetings or over the phone.

It should be noted that under the various Planning Acts, Enforcement and Planning Officers have the right of entry onto non residential land and buildings. They have further powers to enter residential properties, and can apply for a warrant from the Magistrates Court to gain access if their initial attempts to gain entry ( on the giving of twenty four hours notice) are unsuccessful.

In more complex or controversial cases, or where it has not been possible to establish the facts through normal investigation, or where co-operation from the owner/occupier is not forthcoming, a formal Planning Contravention Notice (under Section 171C of the Act), can be served that will relate to any breach of planning control that is alleged by the Council. This requires the recipient to provide specific information. Failure to respond satisfactorily to such a notice within the required timescale is a criminal offence.

Once the investigation has been concluded, which can take a considerable period of time (including many site inspections and discussions with officers who specialise in listed buildings or tree matters, for example ) a decision will be taken as to what action is considered necessary. The Planning Authority will then aim to keep the person who has made the complaint informed of progress.

Resolving your complaint

The vast majority of breaches of planning control are resolved informally by negotiation with the owner/occupier or by the submission of a retrospective application for consideration. Legislation and central government guidance require that all formal action must match the degree of risk or harm associated with the breach .Therefore formal action is not always appropriate.

The Council will, however, take effective enforcement action when it is essential to protect the amenity of the area, the public, or highway safety, and to maintain the integrity of the planning process within Swale.

Decisions about the issue of any Enforcement or Stop Notice or the pursuit of other legal actions will generally be taken by the Planning Committee, but on urgent matters, the Head of Planning Services, has delegated powers to take any necessary action in accordance with the Council's Constitution.

If an Enforcement or Stop Notice is issued the Council must be able to justify its actions in the event of an appeal being made to the Planning Inspectorate .Appeals must be made before the compliance date stated in the Notice takes effect. Appeals can be lodged on a number of grounds and the person appealing (known as the appellant) can request that his/her appeal is dealt with by a written procedure, or ask for an Informal Hearing or Public Inquiry.

When it becomes an offence

A criminal offence occurs where an owner/occupier fails to comply with the requirements of a valid Enforcement or Stop Notice. The Council will usually seek to bring the matter to a successful conclusion as quickly as possible through the pursuit of action in the Courts. In the case of a persistent offence against an unauthorised activity an injunction may be sought through the County or High Court.

In exceptional circumstances the Council will also consider taking direct or default action to resolve a breach of planning control. This may involve the use of contractors to enter a site and physically remove or put right unauthorised works. The Council will seek to recover its costs in these cases, possibly in the form of a charge on the land, that would be recoverable at the time of sale of the land or property.

The Principles under which our enforcement service are provided

Standards

The performance of the enforcement team is to be monitored using the following revised local performance indicators as already set out in paragraph 4.3:

Other additional indicators will also be used to monitor the service's performance, including:

*Footnote: The definition of 'resolving an enforcement complaint' would normally mean the formal closure by an officer of a case with a definite decision made or where the Council has received a valid 'retrospective' planning application with the aim of approving the previously unauthorised development.

These measures have not been monitored previously and therefore will be subject to review by April 2012.

Unless circumstances dictate, all authorised enforcement notices will be served within 10 days from the date of Planning Committee authorisation.

Court action and any other action necessary following the failure to comply with the requirements of an Enforcement Notice will be undertaken in consultation with the Head of Legal Services at Swale Borough Council.

Openness

We will provide information and advice in plain English on the rules that we apply and will share this information as widely as possible. We will be open about how we go about our work and will discuss general issues and try to help anyone experiencing difficulties.

Helpfulness

Proportionality

Consistency

We will carry out our duties in a fair and consistent manner. Advice from an officer will be put clearly and simply and will be confirmed in writing or by email and, on request, an explanation as to why any action is necessary and over what time-scales.

However where a retrospective planning application is required to be submitted, as with all applications where an applicant is seeking pre application advice, then the applicant will be charged as per any other applicant - see our website for further information about the procedures for charging for certain types of pre application - Pre-Application Planning Advice.

Before formal action is taken, officers will provide an opportunity to discuss the circumstances of the case and, if possible, resolve matters unless immediate action is required (for example, where works are being carried out that will cause irreversible consequences).

Where immediate action is considered necessary, an explanation why such action is required will be given at the time and confirmed in writing or by email.

Where there are rights of appeal against formal action, advice on the appeal process will be clearly set out in writing or by email at the time the action is taken (this advice is usually issued with the enforcement notice).

Following the completion of investigations the actions available to us are:

What Happens if we Decide on Formal Action

There are a number of legal powers available including:

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