SCOTTISH PLANNING ENFORCEMENT HANDBOOK (2 nd Edition)

Transcription

1 SCOTTISH PLANNING ENFORCEMENT HANDBOOK (2 nd Edition) Scottish Planning Enforcement Forum Supported by the Scottish Government and The Royal Town Planning Institute in Scotland

2 SCOTTISH PLANNING ENFORCEMENT HANDBOOK For planning enforcement officers in Scotland As amended in February 2010 by Chris Whitley, Aberdeenshire Council Following introduction of the Planning etc (Scotland) Act 2006 From the original document produced by Alan Moonie, City of Edinburgh Council John Ryan, Glasgow City Council Chris Whitley, Aberdeenshire Council Originally Published by The Royal Town Planning Institute 41 Botolph Lane London EC3R 8DL Registered Charity No Printed by RICOH Print Scotland April 2005

3 ACKNOWLEDGEMENTS The Scottish Planning Enforcement Forum is grateful to the following for their input into producing the handbook. Kenneth Meechan Assistant Chief Solicitor Glasgow City Council Chief Executive Department Legal Corporate Law Kenny kindly allowed the SPEF to use a paper which he produced for his Council on the Regulation of Investigatory Powers (Scotland) Act Ian Urquhart Executive Director South Lanarkshire Council Enterprise Resources South Lanarkshire Council produced a guide for monitoring and enforcement to assist officers and has allowed the SPEF to use and amend that document for use within the handbook. The Scottish Executive For funding the costs of the original publication. The authors would like to acknowledge the precedent provided by the members of the Planning Executive s Association of the RTPI in their handbook for England and Wales.

4 CONTENTS Introduction Part 1: Gathering Information 1.1 Sources of information 1.2 Planning Contravention Notice (PCN). 1.3 Section 272 (Request for information). Part 2: Site Safety and Entry to Land/Property 2.1 Introduction. 2.2 Site safety. 2.3 Rights of Entry. Part 3: Enforcement 3.1 The Basics. 3.2 Notice requiring application for planning permission for development already carried out. 3.3 Enforcement Notice. 3.4 Direct Action. 3.5 Fixed Penalty Notices. 3.6 Stop Notice. 3.7 Temporary Stop Notice. 3.8 Breach of Condition Notice. 3.9 Proper Maintenance of Land Notice Section 71 Notice Service of Notice Interdicts Time Limits Register Enforcement Charters Notice Of Initiation of Development Notice of Completion of Development Display of a Notice while development is carried out. Part 4: Listed Buildings, Trees and Conservation Areas 4.1 Listed Buildings 4.2 Trees 4.3 Conservation Areas Part 5: Control of Advertising 5.1 Unauthorised Advertisement

5 Part 6: Licensing 6.1 General 6.2 Vehicle Operating Licence 6.3 Liquor Licensing 6.4 Civic Licensing 6.5 Licensing/Planning Enforcement Appendices 1. General Permitted Development (Scotland) Order 1992 (GPDO) 2. (Use Classes) Order 1997 (UCO) 3. Regulation of Investigatory Powers (Scotland) Act 2000 (RIPSA) 4. Integration of the Scottish Criminal Justice Information System (ISCJIS) 5. Monitoring and Enforcement Guidance 6. Enforcement Charter

6 INTRODUCTION The 1 st Edition handbook prepared by the Scottish Planning Enforcement Forum (SPEF), with assistance and advice from the (then) Scottish Executive and the Royal Town Planning Institute in Scotland. It was intended as a manual for use by enforcement officers, providing guidance and assistance when it is often most valuable in the field. SPEF was established in order that enforcement officers across Scotland could have an exchange of information and procedures. It was recognised that there was a vast amount of knowledge which could, and should be collated and thereafter, disseminated to enforcement practitioners. SPEF seeks to promote good practice and consistent planning enforcement across Scotland which is appropriate to the Scottish Government s programme for Modernising Planning. The Scottish Ministers attach great importance to effective enforcement as a means of sustaining public confidence in the planning system. SEDD Circular 10/2009 provides Government advice and guidance on enforcement, while the information contained in this handbook is intended to provide more practical guidance for those engaged in enforcing planning control. However, the authors wish to make it clear that this document should be seen as a supplement rather than a substitute for official publications. Planning Authorities must now publish their own guidance, in the form of a Planning Enforcement Charter, which is particularly important for consistent practices. Nevertheless, the handbook is practical in style and presentation and the authors are confident that it will prove to be a useful tool for enforcement officers. Further information on planning matters can be viewed on the following websites: Scottish Executive Planning and, Royal Town Planning Institute

7 PART 1: GATHERING INFORMATION 1.1 SOURCES OF INFORMATION During an enforcement investigation, the planning authority will require to compile information in respect of parties interested in the affected land or building. When serving statutory notices, the planning authority must ensure that it has served copies of the notice on all interested parties (see legislation for details) The failure to properly serve notices can result in an appeal being lost, or a case being thrown out of court. Therefore it is important to use all the resources available to ensure that the correct owner, occupier or lessee information is used in the preparation of a notice. The following list can provide useful sources of information, although some are more reliable than others and caution should be shown when assessing the accuracy and integrity of certain sources. Registers of Scotland - This Register contains every parcel of land in Scotland, and its current owner. It is a legal obligation to ensure the Sassines are notified of ownership changes. Council Tax Records/Valuation Roll - These records, prepared by individual councils, contain ownership details of both residential and commercial properties. Electoral Register - This can be useful in identifying properties that have been subject to changes of use, ie. HMO s. However, it is not necessarily up to date, and should be used in conjunction with other sources. Companies Register - This is a particularly useful source of information, as it is essential that a council serves enforcement notices on all parties with an interest in a business. This provides details of the type of company, members names, any previous names etc. DVLA - DVLA can provide information relating to vehicle ownership and keepers. In cases such as unauthorised car repairs, this can be particularly useful where the owner claims that all vehicles in question belong to him/her. All local planning authorities should have a supply of VQ4 forms. Internet - Most enforcement sections now have access to the Internet. This can provide valuable and comprehensive information, especially when investigating business operations, and should be utilised during investigations. Housing Department - This source can provide details of council tenants, and may often include a forwarding address for individuals. Building Control - These records pre-date planning records, and can be particularly useful in determining permitted development rights, where the original design of developments is required. Environmental Health - In many cases this Department will receive the same complaints as the planning department, especially in situations involving hot food shops, restaurants, etc. EHO s may well have information that will be useful to planning, thereby avoiding duplicating investigations.

8 Neighbours - When collating information, neighbours can be a very useful source, although the integrity of such evidence must always be considered. Many neighbours have old scores to settle, and will be more than happy to provide misleading information in the hope of causing inconvenience and trouble. However, they remain an important provider of information, and should be utilised whenever possible. Colleagues - Development Control Officers and other Enforcement Officers may well have considerable knowledge of a particular site or area, often reaching back over a number of years, and will be able to provide an accurate record of its planning history. The integrity of this source should be relatively sound. 1.2 PLANNING CONTRAVENTION NOTICE (PCN) SECTION 125 This is a Notice which may be served, where it appears to the Planning Authority that there may have been a breach of planning control. It is the main method of obtaining information about alleged unauthorised developments. In essence, it can be served on any person who has an interest in the land to which it refers, or is carrying out an operation or using the land for any purpose. It requires the person(s) on whom it is served to give the information as requested on the Notice within a period of 21 days and may offer the recipient an opportunity to either submit an application or discuss the details of the notice at a given time and place. SECTION 126 This refers to the penalties for non-compliance with a PCN, which have been fixed at 1000, for non-completion, and 5000 for knowingly or recklessly to give information, in response to this notice, which is false or misleading in a material particular. Due to the relatively small size of the fine for non-compliance and the cost of bringing the matter to trial, Procurators Fiscal are unlikely to support any case for prosecution to the Sheriff. This should, however, not detract anyone from utilising what is a fundamental and most useful part of the Enforcement Toolkit. 1.3 SECTION 272 This is a Notice similar to the S.125. Its purpose is to gain information in order to serve statutory Notice(s). The response time can be set to any period but must not be less than 21 days from the date of service. The fine for noncompliance is also 1000 but for knowingly making a misstatement in respect of any information given, on summary conviction, a fine may be imposed up to the statutory maximum (currently 20,000) and on conviction on indictment to imprisonment not exceeding 2 years or to a fine or both.

9 PART 2: SITE SAFETY AND ENTRY TO LAND/PROPERTY 2.1 INTRODUCTION Planning Enforcement Officers can often find themselves in stressful and confrontational situations, and it is important that they are able to assess the risk implications, and take the necessary course of action in order to remove themselves from that risk. Gaining experience in dealing with difficult situations is an important part of an Enforcement Officers professional development, and there are a variety of courses available to assist individuals. These courses may cover such subjects as dealing with violence and aggression, recognising body language and development of communication skills. Similarly there are a number of safety devices available to Enforcement Officers that are useful in the general course of their duties; mobile phone; personal alarm; a torch; Dog Dazer etc. The following advice is not exhaustive, and should not be treated as a substitute for formal training courses. Ref. Practice Advice Note (PAN) 11 Personal Safety at Meetings and Site Visits RTPI SITE SAFETY In the event of entering a building, officers should ensure that an exit route is available, and should position themselves so that they are not blocked from that exit at any time. In addition, officers should not adopt an aggressive pose, and should control their body language in order to prevent potentially confrontational situations from escalating into violence. Where an officer considers a member of the public is becoming threatening, he or she should withdraw from the situation immediately, and ensure that any future meetings are held in the planning office, with more than one officer present. Where a site visit is necessary, officers should consider requesting a police presence. It is essential that officers always leave a route list of their site visits, in addition to an estimated time of return to the office. This should be left with an individual who is going to be at the office until their return. In the event of any changes to this schedule, the officer should contact the office to advise accordingly. Officers should always carry a mobile phone, and should have the office and local police station numbers on speed dial. Preparation for site visits can play an important role in ensuring an officer s safety is not compromised. It is advisable for departments to either keep a log of potentially violent or troublesome individuals, or some form of indicator within history files. This will allow an officer to determine whether he or she requires an additional officer or even a police presence.

10 It is also useful to assess the site itself prior to entering the premises so that you are able to exit safely and quickly in the event of excessive confrontation or violence. It is advisable to make your presence known on site as soon as possible, as an owner/occupier can often become agitated on discovering a council official on site without their knowledge. Officers should be firm and take control of a meeting on site without becoming domineering and overbearing. In discussions, officers should ensure that the individual is able to see that their point of view is being considered, and that the officer is not disregarding or ignoring their opinions. On many occasions an individual, whilst not necessarily happy with a council decision, will accept it if the officer has explained the reasoning behind the decision in a calm and firm manner. Should an officer be subjected to violence or intimidation, it is essential that the matter is reported immediately to their line manager. Depending on the nature of the incident it may be necessary to involve the police, or to have a letter sent out from the council s legal department to the individual, advising that similar behaviour in the future may result in civil or criminal action being taken. In any case, the matter should be logged and made available for other officers so that a re-occurrence of such incidents is avoided. 2.3 ENTRY TO LAND/PROPERTY RIGHTS OF ENTRY S.156 and S.157 of the Act make provision for officers to enter land to determine if any breach of planning control has taken place, whether any enforcement action should be taken in relation to a breach and to ascertain whether a statutory notice has been complied with. S.156 confers a right of entry to any person authorised in writing by a planning authority, and in most cases the Head of Department will have delegated powers to sign an authorisation form. However, it should be noted that any inspection carried out under the authority of Section 156 must be undertaken at a reasonable hour, and in the case of a dwelling house, twenty-four hours notice must be given. S.157 makes provision for a sheriff to issue a warrant to enter land where permission has been refused or it is considered that permission is likely to be refused. Unlike S.156 there are no restrictions in respect of giving notice or carrying out the visit at a reasonable hour. A warrant is valid for one month from the date of issue, and can only be used once.

11 PART 3: ENFORCEMENT 3.1 The Basics Planning Enforcement is to bring breaches of Planning under control. Its purpose therefore is to resolve the problem rather than to punish the mistake. Quote from the Scottish Government s template for Planning Enforcement Charters. The actual taking of enforcement action should only ever be as the last resort when all other avenues of resolving the issues have been tried and found to be unsuccessful. However, taking enforcement action should not be unduly delayed and current guidance can be found in Circular 10/2009 Planning Enforcement. It should be noted that breaching planning control is not an offence in itself unless the breach consists of: a) carrying out unauthorised works to Listed Buildings; b) removing/damaging trees within Conservation Areas, c) damaging or removing trees subject to a TPO; or d) displaying adverts without the necessary consent; Otherwise, an offence is only committed when an effective notice has not been complied with within the set timescale stated in the notice. Once an offence has been committed it is important that any further contact with the offender(s) is carried out under caution and in the presence of a corroborating witness. It is also important to remind any interviewee prior to any subsequent meetings that they are still under caution. An example of a witness statement can be found in the Crown Office Publication; Reports To The Procurator Fiscal A Guide For Specialist Reporting Agencies, together with other helpful information regarding reporting offences to the Procurator Fiscal. This document is regularly updated and Officers are reminded to ensure that they refer to the latest amended version. 3.2 NOTICE REQUIRING APPLICATION FOR DEVELOPMENT ALREADY CARRIED OUT Section 33A It should be noted that it is no longer possible to appeal against a S.127 Enforcement Notice on the grounds that, planning permission should be granted or that any condition or limitation ought to be discharged (previously S.130(1)(a) of the 97 Act, which was repealed under the Schedule introduced by S.56 of the 2006 Act).

12 The 2006 Act introduced this new notice so that when an unauthorised development is essentially acceptable in planning terms, or could be approved subject to conditions or limitations, the Planning Authority may issue a notice requiring the landowner to make an application to them for planning permission for the development. If the recipient fails to make the application by the date set out in the notice, an updated assessment of the matter should follow and where the unauthorised development would receive a favourable recommendation (outright) then no further action should follow. However, in cases where the unauthorised development would require conditions attached in order to satisfy the Planning Authority and no application is submitted, formal enforcement action may proceed. 3.3 ENFORCEMNENT NOTICE (EN) SECTIONS 123 and S.123 (2) (a) & (b) of the Act states, that for the purposes of the Act, the issue of an Enforcement Notice (S.127); or the service of a Breach of Condition Notice (S.145); or a notice requiring application for planning permission for development already carried out (S.33A); constitutes taking enforcement action. The Enforcement Notice is the most commonly used where it is deemed necessary to proceed to taking formal action. The decision whether it is expedient to take formal enforcement action in any case, is within the planning authority s sole discretion. Ref. Circular 10/2009. S.127 allows the Planning Authority to issue an Enforcement Notice where it appears to them that there has been a breach of planning control and that it is expedient to do so, having regard to the development plan and to any other material considerations. S.128 refers to the content and effect of the Notice. S.129 allows for the variation and withdrawal of Enforcement Notice(s), including the power to waive or relax such Notice(s). The procedures recommended in order to serve a competent Notice are as follows: Identify the actual breach of planning control and what the remedy is that will rectify that breach. Identify those who are responsible for the breach, the owner and occupier of the land and those who have a material interest in the land (by use of a S.125 PCN or S.272 Notice). Obtain authority, if necessary, in order to serve the enforcement notice. Some Councils have delegated powers conferred to the Director or Head of Planning to serve Enforcement Notices which, given the need for swift positive action, has distinct advantages over having to wait for the next Planning Committee Meeting to obtain authorisation. Have the Notice made ready for service, but have a colleague proof read it for possible errors.

13 Several methods of service can be used: Recorded Delivery, Special Delivery, Sheriff Officer or by personal service. Under S130 of the Act a recipient of a Notice has a Right of Appeal to the Scottish Government at any time prior to the Notice taking effect (Part 4, Town & Country Planning (Appeals) (Scotland) Regs 2008 refer). If the Appeal is submitted within the statutory time-scale, the Notice is held in abeyance until the determination of that Appeal by the Directorate for Planning and Environmental Appeals (DPEA). 1. The breach This should be clearly identified and be factual in order that the recipient(s) understands exactly what the breach consists of. 2. The Section breached S.123(1) defines a breach as either:- (a) carrying out development without the required planning permission; or (b) failing to comply with any condition or limitation subject to which planning permission has been granted; or (c) initiating development without giving notice in accordance with Section 27A(1) of this Act, or (d) carrying out development without displaying a notice in accordance with Section 27C(1) of this Act. It is necessary to identify the specific breach of planning control that the Notice relies upon i.e. S.123(1), either (a), (b), (c) or (d). Thus an Enforcement Notice can also be served against a breach of condition, thereby increasing the penalty for non-compliance under S.136(8) ( 20,000 on Summary Conviction or an open fine on conviction on indictment, as opposed to 1000 for a breach of S.145 BCN) but allowing the recipient the opportunity to appeal against the notice (not possible with the service of a S.145 BCN). However, no appeal under such circumstances can site the grounds that the condition or limitation ought to be discharged (repealed by the Schedule introduced by S.56 of the 2006 Act) and it is therefore simply down to the competence of the condition. 3.4 DIRECT ACTION (Default Powers) SECTION 135 S.135(1) allows the Planning Authority (PA) to take Direct Action if any steps, which are required by an Enforcement Notice, have not been taken within the stated compliance period to the Notice. Such powers enable the PA to enter the land and take those steps, and to recover from the person who is then the owner or lessee of the land any expenses reasonably incurred by them in doing so. These costs can include administration expenses, with some authorities adding 15% of the total direct action costs to the final invoice. Administrative expenses should be reasonable and proportionate and should be based on evidence of costs.

14 Recovery of costs may lead to Court action being taken against the relevant party(ies). In cases where the Notice refers to property, i.e. a dwelling house, then the possibility of an Inhibition Order being placed on the property can materialise, thus, ensuring that the PA will receive its costs in due course of time. It is an offence for any person to wilfully obstruct a person acting in the exercise of such powers. Practical Considerations It is recommended that some steps be taken prior to carrying out Direct Action and these are as follows: Have another officer proof-read the case, paying particular attention to the details of the Enforcement Notice. Best Practice suggests that three separate estimates should be obtained for the necessary works. If the contract is won by outside contractors, the Authority will then have to recover the costs from the owner/lessee of the land Ascertain whether the matter requires Warning Signs to be put in place. Certain works may require prior consultation with statutory undertakers, and to that aim, a telephone call to the National Grid, Plant Protection Team on should be made, or an sent to plantptotection@uk.ngrid.com, giving start date, site contact details and nature of the planned works together with a site plan and grid reference. The Transmission Enquiries Team will then consult all such undertakers on behalf of the PA (free-of-charge). On the day prior to the date of action, visit the site with a witness and ascertain that the breach remains unresolved. Take photographs and date and sign them. On the day of action, prior to proceeding, take further photographs, date and sign these. If at any point, any person(s) behaviour appears to be aggressive and this concerns the officer(s), depart the site and call at the nearest manned police office, or telephone the police if a mobile is available. In extreme emergency, call 999. * If access is not allowed, depart the site and serve a Section 156 Notice requiring access on a given date and time. [Section 157 refers if relating to a Listed Building] If access to the land is again refused, depart the site and seek a Warrant to Enter from the Courts. In cases where items have to be removed from the land (as required in order to comply with the Notice) and the owner etc., is not on site at the time of the actual removal, a letter should be forwarded to same, as soon as is practically possible, informing them of the removal. It is recommended that the local police office be informed of the removal.

15 Where removal of items has been necessary, it is essential that such goods/materials are stored under secure conditions for a period of three days, after which they can be disposed of. Any money obtained by their disposal should be off-set against the final direct action invoice. 3.5 FIXED PENALTY NOTICES (FPN) SECTIONS 136(A) and 145(A) Introduced by the 2006 Act, Fixed Penalty Notices were introduced to try and give Planning Authorities an alternative to prosecution. S.136(A) relates to breaches of an EN, whilst S145(A) relates to breaches of a BCN. Where there are multi recipients of an EN or BCN and the Notice is breached, only one FPN can be issued in respect of any one breach and this should be served on the landowner or landowners as a group if necessary. The basics of FPNs are that a Planning Authority may issue them providing there is a breach of either an EN or a BCN, it must be served within 6 months of the compliance period stated in the respective notice and no prosecution proceedings must have been commenced relative to the breach. The notice can only be served if it is accepted by the recipient as a method of discharging his/her/their liability to prosecution, by the Local Authority, for the breach of the respective EN or BCN, by paying a penalty to the Planning Authority (S136(A) 2000 and S145(A) 300) within 30 days of receipt of the FPN. Should the penalty be paid within 15 days the amount is reduced by 25%. Whilst there is no formal method of withdrawing a FPN and there is also no appeal against its issue, once a FPN is accepted and issued, no prosecution can be initiated during the 30 day payment period. Should the notice go unpaid at the end of the 30 day period, the right to report the matter for consideration as to a prosecution of the failure to comply with the enforcement notice/breach of condition notice by the Local Authority is once again available. (This assumes that it is still within 6 months of the date of the original offence and it is therefore not time barred by the Procurator Fiscal i.e. the Planning Authority may proceed as if a FPN had never been issued at all.) Should a FPN be accepted and issued and the fixed penalty paid, it may well, and probably will, be the case that the breach remains uncorrected. Payment does not discharge the requirement to comply with the original EN or BCN, only the liability to prosecution for the original offence. The Planning Authority retains the right to seek Direct Action to remedy the breach of an EN (but not a BCN) and recover any costs incurred even though a FPN may have been paid. It would appear that, until such time as these penalties are legally recoverable, the best and most expedient course of action would be to either take Direct Action in the case of a breach of an EN, or report the matter to the Procurator Fiscal, immediately the initial breach occurs. 3.6 STOP NOTICE (SN)

16 SECTION 140 A Stop Notice should only be served where it is considered that there is serious harm, injury or risk to the public interest. It can be served in conjunction with an Enforcement Notice (but not before it), or before an Enforcement Notice takes effect. This Notice prohibits the carrying out (on the Enforcement Notice land) of any activity which is within the scope of the breach of control alleged in the Enforcement Notice. It requires any such activity to cease until the date when the compliance period specified in the related Enforcement Notice expires. In effect, the Stop Notice imposes a ban on the matter it relates to. Prior consideration must be given to the use of Stop Notices, as there is a risk of compensation to the recipient of the Notice. However, such compensation is only payable as specified in Section 143 of the Act, and the authors are unaware of any Scottish authority that has been subject to a compensation claim, successful or otherwise. There is no Right of Appeal against a Stop Notice, but it can be legally challenged. An example of a model Stop Notice can be seen at Annex 8 to PAN 54. It is best practice to display a Site Notice whenever serving a Stop Notice. This advises that a Stop Notice has been served and anyone contravening it may be prosecuted. It should be displayed at, or near to the affected site. Failure to comply with the Stop Notice is an offence and should be reported to the Procurators Fiscal as soon as the evidence is collated. Any person who contravenes a Stop Notice is guilty of an offence which is punishable by a fine of 20,000 on summary conviction and an open fine on conviction on indictment. Courts are asked to take into consideration any financial benefit attained as a result of contravening the notice when assessing the level of fine 3.7 TEMPORARY STOP NOTICES (TSN) Sections 144A-D The 2006 Act added TSNs to the list of enforcement notices available to Enforcement Officers as from 3 rd August A TSN takes effect immediately it is issued and requires the immediate cessation of an activity; lasts a maximum of 28 days; and is independent of any other Enforcement Notice. The three criteria for service of a TSN are that; there has to have been a breach of control; the breach consists of engagement in an activity; and it is expedient to stop the activity immediately. The written notice should state the activity in question, prohibit engagement in the activity, set out the Authority s reason(s) for issuing the notice and describe the land concerned. TSNs should only be issued when there is a clear and immediate need. The TSN, together with a copy of Section 144C of the Act, should be displayed on the land to which it refers and, for evidential purposes, a real

17 time/date photograph of the Posted Notice and attachment should be taken. Copies of the notice may also be served on any person who has an interest in the land or is engaged in the activity concerned, a process which, for reasons of certainty, should be followed to avoid any dispute about whether someone knew, or didn t know, of the existence of the notice. A TSN can t prevent the siting and use of a caravan, as a main residence, on any land once the caravan has been sited and the use begun. However, it can prevent further such caravans being sited and therefore the use escalating. This fact should be strongly considered when dealing with Gypsies and other travellers whose main residence may well be a caravan for all or part of a year. A TSN can t prevent use as a dwellinghouse but it can prevent additional development of the building being used as a dwellinghouse. A TSN does not prohibit engagement in any activity which has been engaged in (continuously or not) for over 4 years prior to it being displayed; but this does not preclude its use for prohibiting any activity consisting in, or incidental to, building, engineering, mining or other operations or the deposit of refuse or waste materials. A second TSN for the same breach cannot be served unless the authority has taken some other formal enforcement action, including obtaining a grant of interdict, in respect of the same activity constituting the breach of control. Contravention of a TSN carries the same penalty as contravention of a Stop Notice and, providing the Notice is not withdrawn before it runs its full course and the subject activity is not covered by a valid planning permission or a Section 150/151 Certificate, i.e at the time the notice was displayed it related to a bona fide breach of planning control, no compensation is payable. N.B. Enforcement Officers are advised not to withdraw a TSN ever, even if its purpose has been fulfilled, otherwise their Authority is open to a claim for compensation. 3.8 BREACH OF CONDITION NOTICE (BCN) SECTION 145 This relates to a development which has Planning Consent, but is subject to condition(s) which have not been complied with or discharged. A Breach of Condition Notice may be used as an alternative to an Enforcement Notice. In addition to the details that are on a Section 127 Notice, a Breach of Condition Notice requires to inform the recipient of the relevant Planning Application Number, the date that Consent was granted, who it was granted by and the full description of the application. There is no Right of Appeal against the service of a Breach of Condition Notice. However,

18 if a recipient wishes to contest the validity of the Notice, they may only do so by an application to the Court of Session for Judicial Review. An Authority cannot take Direct Action in relation to a Breach of Condition Notice, and noncompliance should be reported to the Procurator Fiscal. 3.9 LAND ADVERSELY AFFECTING AMENITY OF NEIGHBOURHOOD PROPER MAINTENANCE OF LAND NOTICE (Amenity Notice) SECTION 179 The Planning Authority (PA) has the power to serve such a Notice where it appears that the amenity of any part of their district, or an adjoining district, is adversely affected by the condition of any land in their district. A copy of such a Notice may be served on the owner, lessee and occupier of the land that the Notice refers to. The Notice must state clearly what steps are required to be taken, in a manner acceptable to the PA, for the purpose of remedying the breach of planning control. As with an Enforcement Notice served under S.127, a stated period of time, which must be a reasonable period, in order to comply with the requirements of the Notice must be included (see appeal under S180(1)(c); and this time period commences from the date when the Notice takes effect. The date the Notice takes effect must not be less than 28 days from the date the last recipient was served with a copy of the Notice. There is a Right of Appeal (s.180 refers) against this Notice which is to be made in writing and received by the Scottish Government before the Notice takes effect. The appeal procedure is set out in Part 4 of The Town and Country Planning (Appeals) (Scotland) Regulations Whilst an appeal is being determined, the Notice shall be held in abeyance until the final determination of that appeal by the Directorate for Planning and Environmental Appeals (DPEA). The PA may withdraw a S.179 Notice (without prejudice to serve another) at any time before it takes effect. If the Notice is withdrawn, the Authority must inform every person on whom the Notice was served and should have been served, that it has been withdrawn. A S.179 Notice cannot be served on a building(s) which relate to ancient monuments, or, is included in a list of monuments published by the Scottish Ministers ENFORCEMENT OF ORDERS FOR DISCONTINUANCE OF USE ETC ORDER UNDER SECTION 71 Having regard to the provisions of the Development Plan, and to any other material considerations, the Planning Authority may consider issuing an Order under S.71 to discontinue the use of land, or impose conditions on the

19 continued use of the land, or that any buildings or works should be altered or removed. It should be noted that where the requirements of an Order under S71 involve the displacement of any persons residing in any premises, it is the Authority s duty, if there is no alternative, suitable, residential accommodation available, to re-house such persons in suitable, residential accommodation in advance of the displacement. Under S.72 no Order under S.71 can take effect until it has been confirmed by the Scottish Government and a copy of any such confirmed Order is required to be served on the owner, lessee or occupier of any land to which the Order relates. A period must be stated in the Order, during which time the recipient(s) can request (in writing) a hearing before the Scottish Government, which must be a minimum period of 28 days from the date of service of the copy of the Order SERVICE OF NOTICE/EXECUTION OF SERVICE/CERTIFICATE OF INTIMATION OF ENFORCEMENT NOTICE Recorded Delivery can pose problems where intended recipient(s) fail to receive the Notice due to various reasons. Where this occurs, the Notice(s) are required to be withdrawn and re-served to all by other means. It should be noted that if the Notice(s) had to be withdrawn because the Authority failed to have it served on all interested parties, then the withdrawal letter must also be sent to the person(s) who were overlooked during the original service. When served by Sheriff Officer a copy of the Notice(s) should be returned to the Authority and must be accompanied by an Execution of Service from the Sheriff Officer. As in the above, if served by personal delivery by the reporting officer, then an Execution of Service, including (if possible) a signature of receipt by the person the notice was served on should be completed and kept in the file/records for the case. It should be remembered that if serving by this method, it is essential that an accompanying witness is present to provide corroboration (even if a signature of receipt is obtained) INTERDICT SECTION 146 An Interdict can be used where a planning authority seeks to retrain or prevent any actual or apprehended breach of control. An application to the Court is submitted on behalf of the authority by its legal services division. On an application, the Court may grant an interdict as it thinks appropriate for the purposes of restraining or preventing the breach. Any application should as a bare minimum fulfil the following three criteria;

20 1. in reaching any decision the Planning Authority have taken account of all those considerations that appear to be relevant; 2. that there is clear evidence that a breach of planning control has already, or is likely to occur, on land in the Authorities area; and 3. that an interdict would provide a commensurate remedy in the circumstances of the case in question. Legal advice will determine whether the application should be presented to the Court of Session or the Sheriff Court. In any event Planning Authorities should not fear liability for damages simply because an apprehended breach did not occur, and, whilst advice should also be sought regarding possible costs against the Council for damages as the result of losses to the developer arising from any activity having been prevented, no damages are payable providing the activity can be proven to have been a breach of planning control at the time it was being prevented. When considering whether to make an application to the Court, it should be based on the Council s assessment of the seriousness of the breach of control. The planning authority can also apply for an Interim Interdict. This application is designed to preserve the status quo or prevent temporary and imminent wrong. This is a discretionary remedy, which must be supported by a prima facie case. The Court can consider whether, upon the balance of convenience, the planning authority has sufficient facts to establish a compelling need for immediate protection for the grant of interim interdict. In cases where the defender is a Limited Company, it will be necessary to prove that a previous warning had been made known to the Secretary of the company at the Registered Address by letter. In all other cases, it will be necessary to prove that a similar warning letter had been forwarded to individually named person(s) at their home addresses. Where Interim Interdict has been granted by the Court and has been served, if the defendant continues to breach the matter of planning control relevant to the action, then it shall be necessary to report the matter for consideration of an action for Breach of Interdict. If this action is pursued, the matter has to be considered by the Procurator Fiscal to determine whether criminal proceedings should be commenced. This has the effect of blocking any proposed civil action. If the Procurator Fiscal decides not to proceed with a prosecution, then a proposed civil writ can be sent back to the Local Authority to proceed with a Breach of Interdict action. If a defender is found guilty of a Breach of Interdict, it is entirely at the discretion of the Court to decide what, if any, punishment shall be made. This can be in the form of a fine, or by a custodial sentence TIME LIMITS

21 The Act recognises that in the interest of fairness, developments that have been in existence for a considerable time should be immune from enforcement action. Section 124 sets out statutory time limits for taking enforcement action. There are different time limits in respect of building work, changes of use and breaches of conditions. It should be noted that in cases where works have been carried out on listed buildings, there is no time limit against taking action other than alterations undertaken prior to the listing of the building. In cases involving building, engineering mining or other operations, the time limit for taking enforcement action is four years beginning on the date when operations were substantially completed. Where an unauthorised change of use has occurred or a condition has been breached, the time limit for action is ten years, except in the case of an unauthorised change of use to a dwelling house, where the period is reduced to four years. The term enforcement action is defined as the service of an enforcement notice REGISTERS SECTION 147/181 & Regulation 7, Part IV of Town & Country Planning (Enforcement of Control) (No. 2) (Scotland) Regulations This requires every Planning Authority, with respect to Notices Requiring Application For Development Already Carried Out (S33A), Enforcement Notices (S127), Stop Notices(S140), Temporary Stop Notices (S144A), Breach of Condition Notices (S145), and Waste Land Notices (S179), to keep a Register, as prescribed in the above 1992 Regulations. Regulation 7 of the above amended 1992 Regulations states that the above Notices are to be logged in a register and details the manner and information required to be held in the Register, as well as prescribing the circumstances under which an item may be removed from the Register. Generally a Notice can only be removed from the Register if it has been quashed on appeal or withdrawn. Compliance with a Notice does not mean that the Notice can be removed from the Register; and withdrawing a Notice after it has been complied with, in order to reduce the content of the Register may well be met with by a claim for compensation and should therefore be avoided at all costs. A copy of the Register is to be available, at all reasonable times, for inspection by the public at the office of every general and district Planning Authority ENFORCEMENT CHARTERS Section 158A This section requires Planning Authorities to prepare and publish an Enforcement Charter covering its enforcement policies as to taking

22 enforcement action; how members of the public can notify the Authority regarding perceived breaches of planning control; how to raise a complaint and how complaints are dealt with. Planning Authorities must review their Enforcement Charter at least every 2 years or when required to do so by the Scottish Ministers; and must send two copies to the Scottish Ministers and place one copy in every public library in their district as well as posting the document on the internet. The Scottish Ministers recently published a template for Enforcement Charters, which is reproduced at Appendix 6, and under S158A(2) Planning Authorities must have regard to this guidance when formulating their own Enforcement Charter. NB* Although being introduced by the Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2008, the following notices are also relevant to Planning Enforcement in that the failure to provide a NID or post a Site Notice (when required to do so) has now been included in the definition under S123(1) of the Act as constituting a breach of planning control. It is likely that Enforcement Officer s site visits and inspections, required to monitor the above new requirements and which might not result in any actual breaches, will increase their existing work loads dramatically. This will therefore reduce the time available for dealing with other perceived breaches and complaints. It would therefore be prudent for Planning Authorities, who do not already do so, to consider employing specific Conditions Monitoring Officers in order to allow Enforcement Officers to get on with the job of Planning Enforcement. Monitoring Officers could carryout the checks required by the 2008 Regulations, a fairly simple process, and report any breaches to the Enforcement Officer who would then deal with any such breach in the normal way NOTICE OF INITIATION OF DEVELOPMENT (NID) Section 27A It should not be forgotten that the reason for NIDs was to ensure that the large and increasing number of Conditions Precedent or Suspensive Conditions were not overlooked, i.e. receipt of a NID would flag up the imminent commencement of a development and prompt Officers to check that all prior to development conditions have been complied with. The reason for the increasing number of this type of condition came as the result of the pressure on Planning Authorities to meet nationally set Performance Indicators and the lack of certain information, which was regularly omitted at the submission stage, combined with the vague guidance governing the previous validation process. However, following implementation of Part 3 of the (Development Management Procedure) (Scotland) Regulations 2008 and publication of Circular 4/2009 Development Management Procedures, particularly Section

23 3 and Annex D, it is believed that the number of these prior conditions will be reduced considerably due to this new guidance. The latest guidance clearly sets out exactly what is required to be submitted in order for an application to be validated and includes a number of matters that previously may have been required by the imposition of a Condition Precedent. On granting planning permission for any development, the Planning Authority are required under S27A(2), to direct the attention of the applicant to the fact that under S27A(1), he/she/they must, before any development commences, notify the Authority of the date on which they intend to commence such development. This will generally be done by way of a Planning Informative following any conditions attached to the approval and must also include a reference to the fact that, failure to submit the required notification is a breach of S123(1)(c) of the Act. i.e. failing to submit a NID could be dealt with by way of an Enforcement Notice. Regulations regarding the content of a NID are published under Part 8, Regulation 37 of the (Development Management Procedure) (Scotland) Regulation However, given that failure to submit a NID is a breach of Planning Control under S123(1)(c), Government advice is that a lenient approach may be sufficient in order to obtain the necessary notification, albeit late. Should an Enforcement Notice be served, following a breach of S123(1)(c), and not be complied with, it is highly unlikely that any Procurator Fiscal will take up a prosecution given that the point of the Notification is to inform the Council when development is to commence, whilst the service of an Enforcement Notice indicates that development has already commenced and that accordingly the Council are already well aware of it. Where is the public interest in terms of the service of the Enforcement Notice in the first place; and where is it in terms of prosecution by the Procurator Fiscal? A more practical response to the failure to submit a NID would be (a) if there are no suspensive conditions or conditions precedent attached to the approval take no action at all; and (b) if suspensive conditions or conditions precedent have not been complied with, serve a TSN. If it is thought necessary, during the 28 day period covered by the TSN, the Planning Authority should seek interdict preventing any further development on the site until the condition(s) have been complied with. Employing either or both of these options is likely to concentrate the mind of the developer on the problem in hand and thereby end the situation reasonably quickly and with the desired result, i.e. compliance with any suspensive conditions or conditions precedent NOTICE OF COMPLETION OF DEVELOPMENT (NCD) Section 27B Under S27B(1), any person completing a development must as soon as practicable inform the Planning Authority of that fact. However, this statement is not enforceable other than under S27B(2) of the Act, which requires that a

24 relevant condition must be attached to all approvals relating to phased developments. Such a condition should state that a NCD is required to be submitted at the end of each individual phase but not the last. The last phase is covered by S27B(1), which, as has already been established, is not enforceable, there being no specific time by which the NCD must be submitted to the Planning Authority. Where a condition relating to the provision of a NCD is breached, it should be dealt with in the same way as any other breach of condition, i.e by use of a S127 EN (Breach of Condition) or S145 BCN. However, the same problem arises with the breach of either of these notices as does regarding a notice served as the result of not providing a NID. The purpose of the NCD is to notify the authority that a specific phase has been completed; service of any Notice by the Planning Authority must come as the result of the Council being aware that the phase in question has already been completed. Again, where is the public interest in the service of such a Notice; and where is it in terms of prosecution by the Procurator Fiscal? 3.18 DISPLAY OF A NOTICE WHILST DEVELOPMENT IS CARRIED OUT. Section 27C Under S27C(1), certain developments require that a notice is to be posted on such development sites during the whole course of the development. The need for such a notice is to be brought to the attention of the developer by the addition of a Planning Informative attached to the Planning Approval and following the list of conditions. The type of development, the information contained in the notice and the manner in which it is to be displayed are set out in Part 8, Regulation 38 and Schedule 3 of the Town & Country Planning (Development Management Procedure) (Scotland) Regulation 2008, whilst a template for the Notice is provided at Schedule 7 of the same publication. Section 27C(2) adds failure to supply a NID or post a site notice when required to do so to the list of breaches of planning control as defined under S123(1)(d) of the Act. This addition means that such failures are subject to the possible service of a S127 Enforcement Notice. Unusually, an Enforcement Notice under S123(1)(d) would seem to be quite reasonable, since there is indeed a Public Interest due to the fact that the whole point of the Site Notice is to bring information regarding the development to the attention of the public and, by failing to display such information, the developer is thereby denying this right to the public.