Outcomes
Once a complaint has been investigated and all relevant information collected, the Council will decide on the course of action to be taken. In doing so, it will take into account all relevant legislation, national planning guidance as well as local planning policies and guidance.
As referred to previously, enforcement is a discretionary power, and any action will be considered against tests of wider public interest, proportionality and fairness.
Likely outcomes are summarised below.
No breach is established
The alleged breach has not occurred or has ceased, or it is permitted development under planning legislation, or has planning permission, or it is outside the jurisdiction of planning control.
There is a breach, but it is not expedient to pursue.
The fact a breach may exist does not necessarily mean that formal action should be taken. Enforcement powers are discretionary and minor technical breaches may not be considered expedient to pursue as they may be too minor to warrant formal action and do not cause any harm to the environment and visual amenity.
In consultation with Ward Councillors, the Council may decide not to take enforcement action against identified breaches of planning control where it is not considered expedient to do so and where the breach does not contravene Local Plan policy.
The development is lawful and immune from enforcement action
This is when the unauthorised development has occurred over a long period of time without being brought to our attention. Statutory time limits apply when immunity from enforcement action bites.
On April 25, 2024 Levelling Up and Regeneration Act 2023 (LURA) regulations came into effect which provides an extended period of time (from four years to 10 years) to take enforcement action against unauthorised operational development (buildings, mining and engineering operations) not substantially complete by April 25, 2024.
Additionally, this extended time period now also applies to a change of use of any building to a dwelling if that use took place on or after April 25, 2024. If those breaches took place prior to April 25, 2024, the four year time period for immunity still applies. All other breaches including breaches of conditions remain set at 10 years.
There is no period of immunity for breaches of listed building control.
Where there is doubt about the length of time involved, applications may be made to the Council for a formal determination through the certificate of lawfulness process.
Informal resolution
The National Planning Policy Framework requires the Council to first attempt to resolve breaches of planning control through negotiation. By securing the co-operation of the owner, occupier of the land or any other interested party in agreeing a strategy acceptable to the Council to secure compliance with planning control, simple discussion and negotiations to find a solution, can lead to a quicker and more advantageous resolution, than the use of formal powers. However, where there are serious breaches of planning control it may be necessary for formal enforcement action to be taken swiftly with limited negotiation with the developer.
Planning enforcement officers may advise the developer to make use of the Council’s pre-application advice service as part of the informal resolution process, Pre-application advice is given by planning officers in writing and provides an indication of the acceptability of a development and what is needed to be submitted with a planning application. Such advice given by officers does not indicate any formal decision by the Council and is given without prejudice to the consideration of a planning application.
Retrospective planning applications
Developers may exercise their right to submit a retrospective planning application whether invited to do so by the Council or not. This does not lead to a presumption that permission will be granted. Planning enforcement may be delay if an application is refused as the developer has a right to appeal.
Formal enforcement action will be considered where:
- informal discussions/negotiations have been unsuccessful or it is deemed necessary to address a serious breach of planning control and avoid delay;
- officers consider that retrospective planning permission is not desirable as it is likely to be refused;
- planning permission, including retrospective planning permission, has been refused.
In all cases of formal enforcement action, the action taken will be proportionate to the alleged breach
There is a range of formal powers available to the Council, to be used at its discretion, depending on the circumstances of a particular case. In most cases, there is a right of appeal by the recipient of a notice, either to the Planning Inspectorate or through the Courts. A summary of the main powers are listed below.