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Circular 4/1999

ANNEX B

PLANNING CONTRAVENTION NOTICES

Provisions

1. Section 125 of the 1997 Act includes a discretionary procedure which enables planning authorities to obtain information about activities on land where a breach of planning control is suspected. (The scope of these sections covers operations or activities on, in, under or over the land).

2. These provisions are intended to supplement, for enforcement purposes, the more limited power to require information about interests in land, which Section 272 of the 1997 Act already makes available to planning authorities.

Serving a Planning Contravention Notice

3. Planning authorities are empowered to serve a ' Planning Contravention Notice' on the owner or occupier of the land in question, on a person with any other interest in the land, or on a person who is using or carrying out operations on the land. (A model notice is shown at Annex 3 in PAN 54 on enforcement).

4. A notice may be served whenever a planning authority suspects that a breach of planning control has occurred. There is no need for the authority to obtain prima facie evidence of a breach of control. It is sufficient for the authority to suspect that a breach may have occurred, for example, because they have received a complaint from a neighbour of the site about allegedly unlawful activity.

5. Serving a Planning Contravention Notice does not constitute 'taking enforcement action' (as defined in Section 123(2) of the 1997 Act) and there is no requirement to enter such a notice in the planning authority's register of enforcement and stop notices. It is an entirely discretionary procedure: there is no requirement to serve a notice before taking formal enforcement action, nor does the serving of a notice affect any other power exercisable in respect of any breach of planning control. Where a planning authority decide it is expedient to take enforcement action without first serving a Planning Contravention Notice, it is not intended that their decision could be challenged on the ground that it was unreasonable to proceed without serving such a notice. Nor is it intended that the authority should be put at risk of an award of appeals costs against them because they chose not to serve such a notice.

Information Required

6. Recipients of a notice are required to provide such information as the notice may specify regarding:

• any operations being carried out on the land, any use of the land and any other activities being carried out on the land; and
• any matter relating to the conditions or limitations which apply to any planning permission that has been granted in respect of the land.

Additionally, recipients may be required to provide to the best of their ability:

• a statement declaring whether the land is subject to any of the operations, activities or uses specified in the notice;
• a statement declaring when any operation, activity or use began;
• the names and addresses of any other persons who use or have used the land, or who carry out or have carried out any operations or activities on the land;
• information regarding any planning permission for any use or operation, or any reason why such permission is not required;
• a statement declaring the nature of their interest (if any) in the land and the names and addresses of any other persons with an interest in the land.

Opportunity to make Representations

7. At the planning authority's discretion, the notice may allow recipients an opportunity to make a response to the matters it raises, and to make representations, at a specified time and place. An opportunity to make representations in person may encourage a more co-operative approach from recipients who have previously proved unco-operative in the absence of any requirement to negotiate. Planning authorities should offer this opportunity where they consider that it may facilitate constructive discussions with recipients about how any suspected breach of control could be remedied. Such discussions are likely to be particularly useful in circumstances where planning authorities consider that formal enforcement action could be avoided if recipients would agree to apply for conditional planning permission to regularise activities, or to cease activities, or to carry out any remedial works.

8. It is not intended that every notice should offer this opportunity. Where planning authorities consider that face-to-face discussions would serve no useful purpose, they are fully entitled to use notices for the limited purpose of obtaining information. (In these circumstances, recipients may still ask to discuss the matter with the planning authority).

Responses

9. A response to a notice must be made by giving the required information in writing to the planning authority. However, respondents cannot reasonably be expected to provide information they do not possess or could not reasonably find out. Where a response leaves doubt about the use of the land, or any activity taking place on it, it will usually necessitate a site inspection to resolve the doubt and ensure that any subsequent enforcement decision is well-founded.

10. A notice must inform recipients of the likely consequences if they fail to respond to it (namely, the possibility of formal enforcement action being taken) and of the effect of the provisions of revised Section 143(5) of the 1997 Act (namely that, where a stop notice is served, no financial compensation shall be payable to claimants in respect of any loss or damage which could have been avoided if they had provided information required by a planning contravention notice, or had co-operated with the planning authority when asked to do so). It should also describe the possible penalties for non-compliance which are set out below.

Penalties

11. Failure to comply with a notice within 21 days of it being served is an offence which may be charged by reference to any day or longer period of time. Those found guilty of such an offence will be liable on summary conviction to a fine not exceeding level 3 on the standard scale. An offender may also be convicted of subsequent offences by reference to any period of time following a preceding conviction for such an offence.

12. It will be a defence for persons charged with such an offence to prove that they had a reasonable excuse for failing to comply.

13. Knowingly or recklessly making a false or misleading statement in response to a notice is an offence punishable on summary conviction by a fine not exceeding level 5 on the standard scale.

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