Planning Enforcement Policy and Practice

What is a breach of Planning Control?
What action can the Authority take?
What happens when we receive a complaint?
What are the Authority's priorities
What happens if you are not happy with our service?

What is a breach of Planning Control?

There are two main ways in which a breach of planning control can occur:

Where planning permission has been granted but the approved plans and/or the conditions attached to the approval have not been followed properly. For example, a building may be larger than shown on the approved plans or a condition that specifies the working hours of a business may have been breached. To assist in identifying such breaches the Authority carries out monitoring of approved developments. This is normally achieved by developers sending in a tear-off slip notifying the Authority of when work is due to start. Site inspections may then be carried out to ensure the development is in accordance with the approved plans and conditions. If it proposed to vary or remove a condition attached to an approval, a separate planning application will need to be submitted to the Authority.

A breach of planning control becomes immune from enforcement action if no formal action has been taken within the time limits set out in the relevant legislation. Essentially these are:

Four years from the substantial completion of building or other operational development and from the change of use of any building to a dwellinghouse.

Ten years for all other breaches (i.e. changes of use of land or buildings and breaches of conditions).

If owners of land or property consider that a breach of planning control has become immune through the passage of time they may apply for a Lawful Development Certificate. If granted such a certificate provides documentation to establish the lawfulness of the existing situation. It also serves to avoid the possibility of a further investigation being pursued at a later date, provided no subsequent material changes are made. Further information is provided in 'Lawful Development Certificates - An Explanatory Guide' available from the Authority's planning service.

There are also controls over advertisements, trees, listed buildings and demolition within Conservation Areas.

Where advertisements are displayed without the necessary advertisement consent an offence will have been committed. However, many advertisements do not require consent from the Authority.

In addition unauthorised alterations may be carried out to a listed building. If works are carried out to a listed building which should have had listed building consent an offence will have been committed.

Carrying out works to trees (e.g. pruning) or felling trees that are either protected by a tree preservation order or within a conservation area can lead to action being taken by the Authority.

Certain works of Demolition within Conservation Areas requires consent. Demolition without consent is an offence.

What action can the Authority take?

The Authority, like all Local Planning Authorities, must operate its enforcement activities within the relevant legislation and must take government guidance into account. The breaches of planning control mentioned above do not constitute a criminal offence and although the Authority has a duty to investigate alleged breaches the actual power to take formal enforcement action is 'discretionary'. This means that the Authority does not have to take action just because works have started without the necessary permission or if someone breaches a planning condition.

The Authority, in deciding whether or not to take action, must consider if it is 'expedient' to do so. In other words it must consider whether the breach of planning control unacceptably affects public amenity or safety or the existing use of land or buildings meriting protection in the public interest. This means that a judgement has to be made in each case as to the seriousness of the breach and the level of any harm that it causes. Harm resulting from a breach may include an adverse effect on the appearance of the landscape, a noise nuisance or a danger to highway safety. It cannot include, for example, loss of value to a neighbouring property, loss of an individual's view, interference with someone's private rights or competition to another business. It may be possible to address issues such as these by way of civil action but this is a matter for the individual to pursue and is not an area where the Authority could become involved.

When making decisions on planning applications the Authority must take into account its own planning policies for the National Park and the policy guidance that is published from time to time by the government. The same is true when deciding whether or not to pursue enforcement action. The Authority's own policies are contained in the Structure Plan (adopted in 1994) and the Local Plan (adopted in 2001). Copies of these documents are available from the Authority. In the Local Plan it is stated in Chapter 2 that:

"The National Park Authority is determined to enforce planning controls when individuals fail to apply for necessary permission, or fail to comply with the terms of a planning permission. Unauthorised development, including development in breach of planning conditions, will be judged by the same criteria as other development proposals. Where the National Park Authority considers that unauthorised development adversely affects the valued characteristics of the area or other interests such as those of nearby residents or users of the area, or is otherwise contrary to Development Plan policy, enforcement action will usually be taken."

The following government policy guidance documents can be obtained from Her Majesty's Stationery Office (HMSO) or viewed on the website of the Department for Communities and Local Government (www.communities.gov.uk)

Planning Policy Guidance Note 18: Enforcing Planning Control (PPG18) (1991)

Circular 10/97: Enforcing Planning Control (1997)

Enforcing Planning Control: Good Practice Guide for Local Planning Authorities (1997).

If the Authority receives a complaint, from a member of the public or Parish Council, for example, or otherwise becomes aware of a possible breach of planning control it must first determine whether a breach has in fact occurred. This may involve investigations and research that can sometimes be very time consuming. In cases where the situation is unclear the Authority may serve a Planning Contravention Notice (PCN). This can be served on the owner or occupier of the site, anyone who has an interest in the site or anyone who is using the site for any purpose. The PCN requires the owner, occupier, etc. to provide information, in the form of a questionnaire, about the activities taking place, for example. The PCN also asks for information about the ownership of the site and may invite the recipient to meet with the Authority to discuss the matter. This may be particularly useful where the Authority consider that planning permission could be granted after the unauthorised development has been carried out (i.e. retrospectively) but the owner or operator has not been prepared to discuss submission of an application.

Once the initial investigations have been carried out and it appears to the Authority that a breach of planning control has occurred there are a number of options available. In many cases, where the breach is insignificant or the development could easily be altered to overcome any harm that is caused, for example, the Authority can request the submission of a retrospective planning application. A person who carries out unauthorised development may decide to submit a retrospective application in cases where the Authority considers the development to be clearly unacceptable. The Authority must deal with such applications even where the prospects of permission being granted seem remote. This may delay the taking of formal action. If a retrospective application is not received and the Authority consider that it is 'expedient' to pursue formal action (see the explanation of expediency above), or a retrospective application has been made but has been refused, the following formal powers are available:

Enforcement Notices

This is the most common form of notice used to deal with unauthorised development, operations and/or uses. Listed Building Enforcement Notices are issued when works are carried out to listed buildings. An enforcement notice will specify what the alleged breach is, the steps that must be taken to remedy it, and a time period in which to carry out those steps. An enforcement notice cannot come into effect until at least 28 days after it is served. Within that period the recipient of the notice has a right of appeal to the Office of the Deputy Prime Minister. If an appeal is made, the requirements of the notice are suspended until the appeal has been determined (or withdrawn) so this does delay the process. If any person is later found to be in breach of an enforcement notice that has come into effect, the Authority will consider whether to prosecute, since failure to comply with an enforcement notice is an offence. If found guilty that person would be liable on conviction in the Magistrates Courts to a maximum fine of £20,000. More serious cases may be heard in the Crown Court where the level of fine is unlimited.

Breach of Condition Notice (BCN)

This type of notice can only be used where planning consent has been granted subject to conditions and one or more of the conditions has been breached. The Authority can issue a BCN to ensure full or part compliance with the planning conditions. A BCN would state the breach and the steps required to remedy the breach. The Notice must allow a minimum of 28 days in which to comply with the requirements. There are no rights of appeal against a BCN. If any person is found to be in breach of a BCN he or she shall be guilty of an offence with a maximum fine currently not exceeding £1,000 on conviction.

Stop Notice

The Authority can, when expedient to do so, serve a stop notice requiring activities to cease immediately. Such a notice is generally served at the same time as, or after, the service of an enforcement notice. It is most commonly used to deal with breaches of planning control that are seriously affecting the amenity of nearby residents or to prevent serious or irreversible harm to the environment. There are limitations on the service of this notice and additionally compensation may be payable by the Authority in some circumstances if the recipient makes a successful challenge. It is used very selectively and is not necessarily an instant solution.

Section 215 Notice

Where the condition of buildings or land causes serious harm to the visual amenity of an area the Authority, if it considers it appropriate to do so, may serve on the owner and occupier a Notice under Section 215 of the Town and Country Planning Act, 1990. Such a notice would require steps for remedying the condition of the land or buildings and specify a period of time for doing so. This period cannot be less than 28 days. The Notice can be appealed at a magistrates hearing. Failure to comply with the requirements of a Section 215 Notice is an offence subject to a maximum fine of £1,000 on conviction.

Injunctions

Although they are rarely used, legal powers are available for the Authority to apply to the courts for an injunction to stop an actual or alleged breach of planning control. Injunctions are a discretionary power and the legislation requires an assessment of the likely outcome prior to commencing proceedings. Injunctions can be used to require someone to stop doing something or to require them to carry out something. They can be used in cases of urgency or can be granted by the court following a prosecution. Failure to comply with an Injunction can lead to an unlimited fine and/or imprisonment.

Direct Action

Failure to comply with the requirements of a notice may result in the Authority using powers available to it to enter land and carry out works that are required by an Enforcement Notice. Any costs incurred in carrying out such works can be recovered from the landowner. Where costs are not recovered they can be registered as a charge on the land.

Prosecution

The Authority can pursue prosecution proceedings against any person who carries out unauthorised works to trees that are either protected by a Tree Preservation Order or are within a Conservation Area, unauthorised works to listed buildings and certain unauthorised works of demolition within Conservation Areas. The Authority can also prosecute individuals for non compliance with an Enforcement Notice.

Advertisements

The legislation concerned with advertisements is separate from that dealing with general planning matters. The display of an advertisement (e.g. a shop sign) without formal consent is an offence and the Authority does have the power to prosecute the person displaying it, if it is considered that it harms the amenity of the area or public safety. There is no need for an enforcement notice, or other similar notice, to be served. Under the Town and Country Planning (Control of Advertisements) Regulations 1992, the National Park is an Area of Special Control where additional restrictions apply. If a person is found guilty of an offence under the advertisement regulations he or she could be liable to a fine up to a maximum of £1,000. Even where a sign does not require formal consent the Authority could serve a Discontinuance Notice that would require its removal. Recipients of a Discontinuance Notice do have a right of appeal.

What happens when we receive a complaint?

If someone is concerned about building work, a change of use, or the display of an advertisement etc. they should contact the Authority's planning service. It is preferable if complaints are sent in writing to The Planning Service, Aldern House, Baslow Road, Bakewell DE45 1AE or by email to planning.service@peakdistrict.gov.uk. We will also accept telephone calls on 01629 816200. Describe the problem in as much detail as possible. This should include details such as what the alleged breach is, the location, the name and address of the owner and when the breach started. Complainants have the right to anonymity, and the Authority will make every effort to protect this. However, complainants will be encouraged to give their name and address to the Authority as this may help in the compilation of evidence. In a few cases if a complaint leads to formal action being taken complainants may be requested to give evidence at an appeal inquiry or in court, or in the form of a statement.

The complaint will be logged onto our computer system and given to an officer for initial investigation. Written complaints, including emails, will normally be acknowledged within three working days of receipt. The acknowledgement letter will advise on who is dealing with the complaint. If the complaint is by telephone we will acknowledge it by returning the call, normally within three working days.

The next step will usually be for one of our officers to visit the site. This will be done as soon as possible, but as we receive a high number of complaints we will prioritise our visits according to the apparent seriousness of the problem (see section on priorities below). Those complaints given a high priority will normally be visited within five working days, medium priorities within 10 working days and low priorities within 20 working days. The officer will identify themselves to anyone on the site at the time and explain the purpose of the visit. They will ask questions, take measurements, etc as necessary to help us work out whether a breach of planning control has occurred. Planning legislation gives officers rights of entry to land where it is essential in order to find out whether or not a planning breach has occurred. Where it is clear that an offence has been committed, officers may formally caution the person responsible.

If after the initial site visit and investigation it appears that there has been a breach we will write to the person responsible to advise them to either reverse the unauthorised work or seek retrospective consent within a given time period, usually 28 days. We will also inform the complainant that we are doing this. If this approach fails the Authority will then consider whether it is expedient to proceed to formal action (see above for an explanation of expediency). The complainant will be informed whether or not the Authority decides to proceed with formal action. Further updates on the progress of enforcement proceedings will be given on request. However, complainants will usually be informed of any significant developments, for example, if a retrospective application is made, when any formal notices are issued and if an appeal is lodged. In turn complainants are encouraged to contact the Authority with any new information.

What are the Authority's priorities

The Authority's planning service receives a high number of complaints. Because of the often lengthy and complex nature of the investigations and limited staff resources it is usually necessary to give priority to those cases where the greatest harm is being caused. The following provides a guide to how cases are prioritised:

High Priority

Unauthorised building or other operations that are having a serious detrimental impact on the valued characteristics of the National Park (e.g. large unauthorised buildings prominently sited in the open countryside).
Uses of land and/or buildings that are causing significant harm to amenity or public safety and/or are seriously damaging to the valued characteristics of the area (e.g. noisy industrial uses close to residential properties).
Unauthorised development within the Natural Zone (see policy C1 of the Structure Plan) or in a Site of Special Scientific Interest (SSSI), particularly where it affects the natural and remote character of the area or harms the features of the SSSI.
Potential threats to trees that are subject of a Tree Preservation Order or important trees in Conservation Areas.
Significant works of demolition, removal of historic features or other unauthorised works to listed buildings that seriously affect their historic and/or architectural character.
Threat of demolition of unlisted buildings within Conservation Areas which make a significant contribution to the character and appearance of the area.

Medium Priority

Unauthorised building or other operations that are having a moderate impact on the valued characteristics of the National Park.
Uses of land and/or buildings that are causing moderate harm to amenity or public safety and/or to the valued characteristics of the area.
Unauthorised works to listed buildings that moderately affect their historic and/or architectural character.
Unauthorised advertisements in the open countryside or within Conservation Areas that detract from the valued characteristics of the area.
Breaches of residential occupancy conditions (i.e. those attached to agricultural worker's dwellings, holiday accommodation and local needs dwellings).

Low Priority

Unauthorised advertisements within designated settlements not causing serious harm to the valued characteristics of the area and/or to residential amenity.
Minor breaches of planning conditions resulting in minimal harm to the valued characteristics of the area and/or impact on nearby residents.
Unauthorised satellite dishes on unlisted buildings.
Untidy land/buildings causing minimal harm to the valued characteristics of the area.
The priority assigned to an alleged breach may change once further investigations have been carried out or where the passage of time means that there is a risk that the breach may become immune from enforcement action.

What happens if you are not happy with our service?

The Authority aims to provide an efficient and effective service for everyone it deals with and to maintain good relations with those who use the Authority's services. If you feel we are not succeeding in this in carrying out our Enforcement function then you should initially contact the Head of the Planning Service. If you are not satisfied with the response from the Head of the Planning Service, please write to, fax or email the Director of Conservation and Development. At this stage your complaint about the service will become a formal complaint. A leaflet giving further guidance on how to make a complaint about the service entitled 'Making a Complaint' is available from the Authority.