1. INTRODUCTION: PURPOSE OF PROTOCOL
1.1. The purpose of this protocol is to publish the aims of the Planning Enforcement Team within the Development Control Section of the Planning and Housing Group. It was originally drafted to meet one of the objectives of the Service Plan at the time; to develop and adopt a published statement for the Enforcement Team setting out objectives and priorities. It explains procedures, identifies tools and specifies priorities for service delivery. This Protocol describes what is provided for, and expected of, both complainants and contraveners (ie, those in breach of planning control).
1.2. This Statement has been revised in response to the Council's new Priorities and Objectives, as set out in the Corporate Plan. In particular, the Protocol will enhance the effectiveness of Council staff and improve the way we operate by delivering a customer centred, high quality service.
1.3. This revised protocol was agreed by the Development Control Committee on 10 August 2010.
2. SCOPE OF SERVICE
2.1. It is important to be aware that the Planning Enforcement Team is empowered to investigate breaches of planning control and conditions. Its role is to resolve such breaches by informal methods wherever possible and expedient but if necessary through legal notices and court proceedings. Officers cannot intervene in non-planning matters such as boundary disputes and blocking of right-of-ways, or matters controlled by other legislation such as Building Regulations or public nuisance under the Clean Neighbourhoods and Environment Act 2005. However, consistent with a customer-focused policy, Enforcement staff will redirect enquiries to other Council departments and other bodies , where appropriate, or advise contacting the local Citizens' Advice Bureau or a solicitor.
2.2. Planning enforcement action can only be pursued where works have taken place without the benefit of planning permission, or where a development with the benefit of planning permission has not been undertaken in accordance with the approved plans/ details or a condition attached to it. Thus, domestic extensions, regardless of impact on neighbours, are immune from planning enforcement action if they fall within permitted development rights. Furthermore, those extensions commenced within the standard three-year life of a permission and built as approved are also are beyond further control. It follows that no action is possible in respect of anticipated breaches, regardless of how reliable the rumour.Action can only be taken once unauthorised development has commenced. However, in some exceptional instances the Enforcement team may attempt to prevent a breach occurring (see the Annex of this protocol).
2.3. In addition to building works, planning enforcement can also apply to demolition, material changes-of-use, alterations (both internal and external) to listed buildings; advertisement signs and hoardings and to trees subject to preservation orders and in Conservation Areas; hedgerow removal, adverse impacts on habitats and untidy land and buildings.
2.4. Finally, it must be noted that, whilst a Local Planning Authority (LPA) has a duty to investigate allegations of planning breaches, enforcement powers are discretionary. This is in accordance with Government guidance contained within PPG18 (Enforcing Planning Control).
2.5. In such a regime, it is foreseeable that some complainants will be disappointed with outcomes if it is considered not expedient to take any action. However, the planning system is designed to achieve a balance between competing demands in the public interest, and so enforcement of planning control reflects this, focussing on proportionate resolution rather than punishing those who have acted in breach, often unknowingly.
3. ENFORCEMENT TOOLS AND REMEDIES
3.1. The vast majority of breaches of planning control are resolved informally through negotiation which is generally the Council's preferred method. This may involve the contravener submitting a retrospective planning application, reflecting the development as built or a modified version incorporating changes advised by officers to render it acceptable. Submission of an application, if granted also affords the L P A the opportunity to impose conditions so that a use or structure becomes acceptable.
3.2. It should be noted that in cases of advertisements being displayed illegally or works being carried out to listed buildings without consent, contraveners remain liable to prosecution and associated court costs for the offence committed unless consent is obtained.
3.3. In some situations, the Council may allow time to remedy a situation, such as by voluntary relocation or removal of the unauthorised development, however, the formal enforcement procedure can be a lengthy process itself and such leeway will not be allowed to delay effective action unnecessarily.
3.4. Where informal resolution cannot be achieved, there are a variety of formal tools available to the Council. These are described in detail in the Annex.
4. POLICY: PRINCIPLES OF GOOD ENFORCEMENT
4.1. The Forest of Dean's Planning Enforcement Team will observe the principles laid down in the Enforcement Concordat published by the Cabinet Office in1998. This entails:
- standards being published and monitored for service provision ( see section 6)
- openness regarding dealings and clarity of advice
- helpfulness through courteous and efficient encouragement of compliance
- complaints procedure accessible and effective
- proportionality so that costs of compliance are commensurate with the harm caused
- consistency in exercising its discretion to enforce (this does not mean uniformity, as all cases are treated according to their individual merits)
4.2. These principles apply equally to dealings with individuals or organisations complaining about breaches of control and with those responsible (or alleged to be responsible) for any breach.
5. PROCEDURES: PRINCIPLES OF GOOD ENFORCEMENT
5.1. The Council's procedures will reflect the guidelines provided in the Enforcement Concordat. Clear advice will be provided, explaining what remedial action is required, when it must be taken and why. Officer’s will consider individual circumstances, respond to issues raised and explore all opportunities to secure informal resolution of breaches unless immediate action is required in the public interest. Where formal action is unavoidable, rights of appeal will be notified at the time, where appropriate.
6. INVESTIGATING COMPLAINTS: TARGETS/ SERVICE STANDARDS
6.1. The Council recognises that an equal duty exists to the complainant and the alleged contravener and seeks to resolve matters of mutual concern equitably.
6.2. Complainants are encouraged to contact the office should they discover any new breaches of planning control or in the event of any material change to an existing complaint.
6.3. The Forest of Dean District Council takes all breaches of planning control seriously and will vigorously pursue all cases coming to its attention wherever expedient. The Authority recognises that members of the public can be a valuable source of information about developments across the District, for example by monitoring sites in between official inspections. Complainants can be most helpful, when reporting an alleged breach, by including as much relevant information as possible about the current and previous situations. Complainants will also help to increase the efficiency of the service by heeding the general advice contained in this protocol (for example, planning enforcement does not settle neighbour disputes, as this is a civil matter).
6.4. Complainants when making complaints are requested to supply contact details so that any ambiguity can be resolved. Contact details also allow the LPA to advise complainants of progress during investigations. Complainants may be reassured that the Council will not reveal the identity of complainants under any circumstances; however, in the event of legal proceedings and appeals, a successful outcome may depend upon the willingness of complainants to make submissions and/or appear as witnesses in court and public inquiries or hearings, at which time their identity will of course enter the public arena.
6.5. Those reporting a potential breach of planning control are sent an acknowledgment advising the name and contact details of the Enforcement Officer allocated the file, wherever possible within 5 working days of receipt.
6.6. An initial assessment involving a desk study will follow immediately and a site visit made if necessary according to the prioritisation schedule in section 8.4. Alleged breaches will be investigated by a site visit as soon as possible, prioritised as above and normally within 20 working days of receipt, with priority cases within 5 working days.
6.7. Having gathered the detailed factual information and any necessary photographs, the Officer will then agree a course of action with the Team Manager within 25 working days of the receipt of the complaint.
6.8. Complainants will be notified of these findings and of an estimated timeframe of any action to be pursued. Where no action is proposed, complainants will be advised of the justification within 25 working days of the receipt of the complaint.
6.9. If a planning application is submitted in an attempt to regularise a breach, the complainant will be advised in writing and given the opportunity to submit comments. Their names or address should not be included on the standard consultee list if they would not otherwise appear on it, as this would compromise their confidentiality.
6.10. When a notice (other than a Planning Contravention Notice) has been issued, the complainant will be notified within 10 working days of issue, specifying the requirements and the date for compliance.
6.11. If an appeal is lodged against a refused retrospective application or an enforcement notice, the complainant will be notified within 5 working days of the starting date advising how they may participate.
6.12. In the event of a prosecution, complainants not involved as witnesses will be advised of the provisional hearing date, this date being confirmed once the summons from the Magistrates Court is issued.
6.13. When a case is closed, the complainant will be notified with reasons within five working days of closure.
6.14. The nature and complexity of subsequent proceedings are such that resolution may be protracted. Complainants will wherever possible be informed of each significant stage of the process. They can also contact the Enforcement Section to monitor progress.
THE INVESTIGATION AND THE CONTRAVENER
6.15. Officers will provide clear advice to the contravenor in order to help them voluntarily rectify any breach of planning control and avoid the need to take formal enforcement action.
6.16. Investigating officers will enter premises only if it is necessary to do so in order to establish all relevant facts. When doing so, officers will advise an occupier present at the time of the purpose of the visit, producing Council identification and proof of rights of entry. If there is no occupier present at the time of the visit then Officers will contact the occupier/ owner to arrange an alternative time and date. Where this proves difficult it should be noted that Sections 196A, 196B and 196C of the Town and Country Planning Act 1990 do enable LPAs and Justices of the Peace under warrant ,to authorise named officers to enter land specifically for enforcement purposes . This right is limited to what is regarded as essential, in the particular circumstances, for effective enforcement of planning control and 24 hours prior notice will be given where appropriate.
6.17. Where a breach is identified, those responsible will be advised in writing of the necessary remedial steps, timescale and consequences of inaction within 25 working days of the receipt of the complaint.
6.18. Where the breach appears to largely accord with planning policy subject to minor works/ conditions, a retrospective application will be invited together with suggested amendments within 25 working days of the receipt of the complaint. Should no planning application be submitted to rectify the breach despite two written requests, enforcement action will be taken that requires the necessary works to be carried out or the condition to be complied with (for example, to ensure an unauthorised extension is rendered to match the existing house or the opening hours of a takeaway are controlled).
6.19. Where the breach of planning control is considered to accord with local and national planning policies and no planning application is submitted to rectify the breach despite two written requests, it may not be expedient to take formal enforcement action in accordance with government advice (see paragraphs 2.4 and 2.5 of this protocol).
6.20. Those responsible for breaches, which are clearly contrary to policy, will be advised accordingly in writing within 25 days of the receipt of the complaint. Attempts will then be initiated to secure regularisation informally, and a reasonable period will be allowed for voluntary rectification. It should be noted that enforcement action might not necessarily be delayed even if the contravener submits an application for permission or appeals if the application is refused.
6.21. Where informal attempts prove in vain, the contraveners will be given no less than 10 working days written warning of a decision to pursue formal action; except where the breach is causing unacceptable ongoing harm or involves irreparable damage to a listed building, for example, so as to justify the service of a stop notice. Should the contravener fail to comply with any attempts made by the Planning Department to resolve the matter the Legal Department will be instructed to commence formal proceedings.
6.22. Prior to any instruction the Planning Department will discuss the case with the Legal Department to ensure that formal proceedings are appropriate in legal terms (the matter of expediency in planning terms is a decision that should be made by the Planning Department).
6.23. At each successive stage of formal proceedings, contraveners will be notified of intended action by the Legal Department and will still have the opportunity to resolve matters voluntarily prior to the service of the relevant notice thereby negating the need to take formal action.
6.24. Once the Legal Department has been instructed the two departments will keep each other informed as to any progress or change in circumstances.
6.25. Contravenors will be made aware of the likely legal costs that they may incur if the matter reaches court as well as any fines being imposed.
7.1. In cases where the complainant or contravener is concerned that relevant procedures have not been followed or they feel that they have not been treated fairly, they will be encouraged to contact the relevant member of staff's Line Manager in the first instance. Formal complaints will be handled in accordance with the Council's Complaints Procedure.
8. PRIORITISING ENFORCEMENT ACTION
8.1. The Council acknowledges that minor breaches can cause considerable distress to those immediately affected and the Enforcement Team will be responsive to residents' requests for investigation. Certain breaches of planning control will require urgent and immediate attention, either because the time period for action is limited or because the effect of unauthorised activity causes significant harm to the public interest. Examples of these are where deadlines have to be met in court or other legal proceedings; or where unauthorised works are occurring to a protected tree or a listed building.
8.2. Other breaches of planning control can be investigated and progressed to a satisfactory outcome through submission of a planning application, or agreement to take remedial steps, and these processes may take some time. Where such breaches are unlikely to cause significant harm to the public interest to such an extent that immediate action is required, they will form the ongoing work of the Enforcement Team but not be accorded urgent and immediate priority.
8.3. The priorities for action have been drawn up to improve the fairness and efficiency of the enforcement service. Responses will vary according to the circumstances of individual cases.
8.4. Priority Cases - Urgent and immediate
- Complaints of serious irreparable harm to Listed Buildings
- Demolition works in a Conservation Area
- Works to trees in Conservation Areas
- Removal of ancient hedgerows
- Adverse impacts on wildlife habitats
- Works to trees with Preservation Orders
- Cases where the time-limit for enforcement action will expire imminently
- Complaints of development taking place which are causing serious harm to amenity and road safety
- Non-compliance with effective notices
- Complaints where an urgent response is likely to prevent serious harm to amenity or shorten the time taken to resolve the issue e.g Gypsy Sites
- Concerns (backed up by strong evidence) that a breach of control may occur in the future - and a proactive response is required to prevent this happening.
- Creation or erection of new dwellings or buildings
8.5. Other Cases
8.5.1. A risk based approach will be adopted in relation to scale, impact, number of people affected, harm caused and effect on LPA’s reputation.
8.5.2. It should be noted that where an investigation reveals additional breaches of planning control, the status of the complaint may be varied.
9. LIAISON WITH INTERNAL AND EXTERNAL BODIES
9.1. With many alleged breaches of planning control it is important that specialist input is sought by the Case Officer. Examples of this may be where a listed building is affected or there is a highway safety issue (County Highways Officer) or trees, hedgerows and habitats (Environmental Planning Officer). Liaison also takes place with the Council’s Building Control Section , Environmental Services, Street Wardens, Economic Development, Finance and Legal Departments, District Councillors and Parish Councils.
9.2. The Enforcement Officer will also check the planning history on the site and liaise with the relevant Development Control Officer, if applicable, who may have recently visited the site and have specific knowledge and advice regarding activities on it.
9.3. Where specialist advice is required the Enforcement Officer will consult in writing (e-mail is sufficient) the relevant parties within 5 working days of the receipt of the complaint asking for their views on the alleged breach. A response will be sought from these parties within 15 working days.
9.4. Any views given by consulted parties will be taken into account when assessing whether the breach of planning control is unacceptable and whether it is expedient to take formal action. Such parties will also need to be involved if an appeal is submitted against the service of an enforcement notice.
9.5. Whilst other parties may therefore be involved in the enforcement process it is the Enforcement Officer who manages the case and co-ordinates any action the Council may take.
10. THE IMPORTANCE OF MEMBERS
10.1. Breaches of planning control can affect the lives of many residents and can also have serious legal implications for the contravener. It is therefore important that members are involved and kept informed of the enforcement process and are aware of how the Council is performing.
10.2. A report will therefore be presented to the Council’s Development Control Committee on a quarterly basis outlining the Council's enforcement performance. This will include details of the number of cases received and closed, the average time of closure and an update on the current situation regarding any enforcement notices that have been served (for example; whether the notice has been complied with, whether an appeal has been submitted etc.).
10.3. Furthermore, where there is a breach of planning control and officers consider it is appropriate to serve an enforcement notice or S215 notice or issue an injunction to remedy that breach, a report will normally be presented to the Council’s Development Control Committee to seek the authorisation of members to pursue formal action.The authorisation of members will not be sought where the Development Control Committee has previously refused planning permission for the breach that has occurred or where urgent action is required.
11.1. The guidance contained within this Protocol aims to ensure that the Council provides a high performing and customer focused enforcement service.
11.2. This guidance will be reviewed on a bi- annual basis to assess its effectiveness, revise procedures where necessary and to ensure that any new planning legislation and /or Government advice is incorporated.
11.3. Further advice on the enforcement powers available to the Council can be found within Government Circular 10/97: Enforcing planning control: legislative provisions and procedural requirements and the Government's Planning Policy Guidance Note 18 (Enforcing Planning Control) or such other guidance that shall be in force at any such time.
Please click on the link to view a Glossary of Enforcement Tools and Remedies
Published 8 November 2010