Planning Enforcement Policy
1.1 DETR Circular 10/97 (July 1997) brings together and updates earlier guidance on how to use the amended enforcement provisions in Part VII of the Town and Country Planning Act 1990.
1.2 It states that the planning authority's decision to take enforcement action must be well founded and a thorough assessment taken of the relevant factors in every case.Assessment is made more difficult if the authority have not produced a clear statement of enforcement policy to provide a decision-making framework.
1.3 This document sets out the Council's general approach to planning enforcement, then deals with various common types of breach experienced in the Borough and concludes with organisational issues.The document forms part of the Council's response to the Enforcement Concordat, an initiative by the Cabinet Office, which promotes better service to the business community in relation to all local authority regulatory functions.
2 THE COUNCIL'S APPROACH TO ENFORCEMENT
2.1 The Council recognises the importance of establishing effective control over unauthorised development and will not condone wilful breaches of planning law.However, enforcement is a discretionary activity.In considering whether it is expedient to take enforcement action, the Council will take into account Structure and Local Plan policies and all other material considerations.Consideration will also be given to the reasonable time and resources available to carry out the enforcement function.
2.2 The Council will take particular account of the following documents in considering breaches of planning control:
The Dartford Local Plan 1995
The Kent Structure Plan 1996
DOE Circular 10/97 "Enforcing Planning Control"
Planning Policy Guidance Note 18 "Enforcing Planning Control"
"Enforcing Planning Control: Good Practice Guide for Local Planning Authorities", Department of
the Environment Transports and the Regions, 1997
Relevant Case Law
2.3 The Council will assess whether the breach of planning control unacceptably affects public amenity or causes harm to land and buildings.Officers will attempt to persuade the owner to voluntarily put right the breach.However, negotiations will not be allowed to delay formal enforcement action or to compel it to stop.If a breach is sufficiently serious to justify immediate action, then appropriate action will be taken.The possibility of an appeal being lodged against the Councils action will not dissuade it from proceeding if there is good reason to do so.
2.4 Formal enforcement action will not normally be taken where a trivial or technical breach of planning control causes no harm to the local environment.Any decision not to take formal action against an identified breach will be made by the Development Control Board.
2.5 Particular regard needs to be paid to the specific time limits imposed within the 1990 Act, which allows a breach of planning control to become lawful for planning purposes.These limits are:
4 years for
unauthorised built development
change of use of a building to a residential use
10 years for
material change of use of land and buildings (other than residential)
breach of a condition imposed on a planning permission
2.6 In investigating alleged breaches, officers will have regard to the provisions of the Regulation of Investigatory Powers Act 2000 and the Human Rights Act 1998.
3 UNAUTHORISED BUILT DEVELOPMENT AND CHANGES OF USE
3.1 Where unauthorised development is unacceptable and causes serious harm to the environment and the Council is likely to take enforcement action, then a planning application to regularise the breach will not be encouraged.However, where the development provides valued local employment, the Council will generally allow a realistic period for compliance when issuing an enforcement notice.
3.2 Where development requiring planning permission has been carried out and in the opinion of officers, planning permission is likely to be granted, a retrospective planning application will be requested. Should an application not be submitted within a reasonable time scale, the owner will be advised that future local land charges searches will reveal that planning permission has not been obtained. This is likely to cause difficulty on future conveyancing.
3.3 Where there is no specific planning objection to the development, formal enforcement action will not normally be considered appropriate. This will also apply where a planning permission has been implemented not in accordance with the approved plans and the changes, although requiring a fresh planning application, are not considered objectionable.
3.4 If development that has already commenced could, in the opinion of officers, be permitted subject to conditions, then in the absence of a retrospective planning application, an enforcement notice could be issued specifying conditions to make the development more acceptable. This is known as a positive enforcement notice.
4 NON COMPLIANCE WITH PLANNING CONDITIONS
4.1 Where conditions imposed on a planning permission have not been complied with, the developer/applicant will be requested to comply with the requirements of the permission.Failure to do so may ultimately result in the issuing of a Breach of Condition Notice or an Enforcement Notice, depending on the circumstances.
5 LISTED BUILDINGS
5.1 When unauthorised work to a listed building is carried out without consent, an offence may have been committed.Consideration will be given to taking criminal proceedings and/or issuing a listed building enforcement notice.The decision whether or not to prosecute will generally depend on the severity of the alleged offence. This will also apply to an advertisement placed on a listed building if it seriously affects the integrity of the building design.
5.2 Where a listed building has fallen into disrepair, consideration will be given to issuing an Urgent Repairs Notice.Advice will be sought from the appropriate expert authorities before proceeding on such a course of action.
6 CONSERVATION AREAS
6.1 Where development has been carried out which seriously affects the character and appearance of the Conservation Area, enforcement action will generally be taken.
7 TEMPORARY USE OF LAND AND BUILDINGS
7.1 Part 4 of the General Permitted Development Order permits the temporary use of land and buildings for specified purposes of limited duration. If the use causes harm to the local environment and continues beyond the time limit set out in the General Permitted Development Order, then a Breach of Condition Notice will be issued for non-compliance with the limitations imposed under Part 4 of the Order.
8 CONDITION OF LAND
8.1 Section 215 of the Town and Country Planning Act 1990 enables the Local Planning Authority to issue a Notice where it is considered that the condition of land, including a building, is detrimental to the visual amenity of the area.In such cases, consideration will be given to serving a Notice setting out the steps required to improve the appearance of the land.If those steps are not undertaken within the specified time, the Council may prosecute for non-compliance and/or enter the land and carry out those steps.
9 LAWFUL USES AND ACTIVITIES
9.1 Section 191 of the Town and Country Planning Act 1990 enables the local planning authority to issue a Certificate of Lawfulness for an existing use or activity which has been continuous for many years and is immune from enforcement action.If a landowner considers that a use under investigation is lawful, he/she may be requested to submit an application for a Lawful Development Certificate. However, if the use is clearly causing demonstrable harm, then enforcement action will proceed.
10.1 The Town and Country Planning (Control of Advertisements) Regulations 1992 permits the display of certain classes of advertisement without the need to obtain specific express consent.
10.2 The display of an advertisement without express consent is a breach of the Regulations and is an offence. If officers consider that an application for the advertisement would probably be granted, then a retrospective application will be requested.Where the advertisement causes serious harm to amenity or public safety, a request will be made for its removal within a specific period. If the advertisement continues to be displayed after this period of time, then prosecution action will be taken.
10.3 Discontinuance Notices against deemed consent advertisements, including poster hoardings, will be considered where the Council wishes to undertake environmental improvements to an area.
11 DELEGATED POWERS
11.1 The Council has given delegated authority to its officers to exercise many of the legislative powers available to it for breaches of planning control. This allows matters to be dealt with swiftly where appropriate. These delegated powers are reviewed annually.
12 EFFECTING ENTRY ONTO LAND
12.1 Under the Council's delegated powers, named officers have a specific right of entry onto land in pursuing effective planning control under the provisions of the Town and Country Planning Act 1990. Officers will exercise these powers where appropriate, particularly where their use is essential to collect evidence relating to a breach of control.Evidence of authorisation to enter land will be issued, retained by the authorised officer and produced when effecting entry. If entry is refused, a notice of intended entry will be served in accordance with delegated authority, stating a date and time when entry will be effected.If entry is again refused, then an entry by warrant issued by a Justice of the Peace shall be sought.
12.2 Any person who wilfully obstructs an authorised officer acting in the exercise of a right of entry shall be guilty of an offence.
12.3 Similar provisions shall apply for entry to listed buildings under Section 88 of the Planning (Listed Buildings and Conservation Areas) Act 1990 and for Tree Preservation Orders under the Town and Country Planning Act 1990.
13 PROSECUTION PROCEEDINGS
13.1 Enforcement action includes instituting criminal proceedings. This is considered to be a last resort.However, when all avenues have been exhausted and a serious breach is continuing, the Council will exercise its full powers of enforcement and initiate prosecution proceedings.
14 DIRECT WORK ACTION
14.1 There will be occasions where enforcement notices and prosecutions will not have the desired effect and compliance with planning control is not obtained.In such cases, the Council will seriously consider undertaking direct work action and recover the costs of such action from the landowner.
15 MONITORING DEVELOPMENT, CONDITIONS AND S106 AGREEMENTS
15.1 At least 10% of applications approved by the Development Control Board will be monitored to ensure that development is in accordance with the approved plans and in compliance with planning conditions imposed.
15.2 All agreements completed under Section 106 of the Town and Country Planning Act 1990 will be monitored.
16.2 The Council will carefully consider the needs of the enforcement function in the context of its wider planning functions.Recent experience has shown that the workload generally warrants two officers devoted to enforcement duties.Staffing levels will be kept under review on a regular basis.
17 LIASION WITHIN THE COUNCIL AND WITH OTHER AGENCIES
17.1 Procedures are in place to check Building Regulation applications against planning permissions or permitted development rights and to advise the enforcement officers when a start is made on a site supervised by an Approved Inspector.
17.2 Officers will liaise with outside agencies such as the Environment Agency, the Traffic Commissioners, other local authorities and the DVLC, particularly where this assists an enforcement investigation.
17.3 Liaison arrangements will have regard to the provisions of the Data Protection Act 2000.
18.1 The Council deals with a large number of enforcement complaints every year.Each complaint will be investigated initially to see if a breach of planning control has taken place.If it has, then it may be necessary, depending on workload, to give the matter a lower priority than other cases.Generally, cases will be prioritised for action as follows:
Priority 1 -
Breaches that cause serious harm to the local environment because of noise, smell, visual impact etc.
Breaches that are contrary to well established planning policies, such as Green Belt
Breaches that seriously compromise the integrity of a Listed Building or Conservation Area
Unauthorised work to trees that are the subject of a Tree Preservation Order or in a Conservation Area
Priority 2 -
Breaches that are not causing serious harm but would nonetheless be unlikely to receive planning
Priority 3 -
Breaches which would be likely to receive planning permission if an application was made
The Development Control Manager will keep these priorities under review.
19 PERFORMANCE INDICATORS
19.1 Officers will acknowledge all complaints in writing within 48 hours of receipt.Thereafter, a site visit will be undertaken within eight working days and the complainant advised of the outcome. Both of these targets are recorded and monitored on a monthly basis. If at the time of complaint, it is clear that the alleged breach falls within Priority 1 and is such that an immediate site visit is necessary, then this will be undertaken as soon as is reasonably practical.Such cases might include unauthorised demolition of a Listed Building or felling of protected trees.
19.2 Enforcement workload, including the number of inquiries received and the number of notices issued, is reported quarterly to the Development Control Board.