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Circular 4/1999

ANNEX E

ENFORCEMENT NOTICES

Provisions

• Sections 127-129 of the 1997 Act are intended to assist planning authorities in the drafting of enforcement notices, so that there is a reduced likelihood of a notice being quashed on appeal or found to be a nullity on the grounds of technical deficiency. However, planning authorities will need to continue to draft every notice with the utmost care.

Issue Of An Enforcement Notice

• Planning authorities are empowered, at their discretion, to issue an ' Enforcement Notice' where it appears to them that:

• there has been a breach of planning control; and
• it is expedient to issue a notice having regard to the development plan and other material considerations.

• The concept of 'issuing' a notice is interpreted as meaning that the planning authority should prepare a properly authorised document and retain it in their records. Copies of that notice must then be served on:

• the owner and the occupier of the land to which it relates; and
• any other person with an interest in the land, if the authority considers that interest to be materially affected by the notice.

• The notice must be served:

• within 28 days of its date of issue; and
• not less than 28 days before the date on which it is due to take effect (ie the date from which the compliance period starts to run).

• It is important that details of every enforcement notice issued are entered in the register which planning authorities are required to keep under Section 147 of the 1997 Act. If a notice is not appropriately recorded (in accordance with Regulation 7 of the Enforcement of Control (No.2) (Scotland) Regulations 1992) and if persons charged with an offence under Section 136 of the 1997 Act (see paragraphs 37-39 below) have not been served with that notice, that section provides a defence for such persons if they can show that they were not aware of the existence of the notice.

Content Of Enforcement Notices - Identification Of The Breach

• It is required that:

• the matters which appear to the planning authority to constitute a breach of planning control must be stated in the notice, and stated in a fashion which enables any recipient of the notice to know what those matters are; and
• the paragraph of Section 123(1) of the 1997 Act within which the authority considers the breach to fall must also be stated in the notice (ie whether the breach was caused by development being carried out without planning permission, or by a failure to comply with any condition or limitation).

Content Of Enforcement Notices - Remedial Action And Its Purpose

• The notice must specify the steps which the authority requires to be taken, or the activities which it requires to cease, in order to wholly or partly achieve the purpose of:

• remedying the breach by making any development comply with the terms, conditions and limitations of any planning permission which has been granted in respect of the land, by discontinuing any use of the land or by restoring the land to its condition before the breach took place; and/or
• remedying any injury to amenity which has been caused by the breach.

Examples of the type of remedial action which the notice may require are:

• the alteration/removal of any buildings or works;
• the carrying out of any building or other operations (provided any such remedial action does not have a further detrimental affect on amenity or public interest) ;
• any activity on the land not to be carried on, except to the extent specified in the notice; or
• the modification of the contour of a deposit of refuse or waste materials on land, by altering the gradient(s) of its sides.

If the notice:

• does not require the removal of any buildings or works which it is entitled to require; or
• does not require the cessation of any activity which it is entitled to require;

then those buildings, works or activities shall be treated as having been granted planning permission, provided that all the requirements which were specified in the notice have been fulfilled. No procedure is specified for this 'deemed grant of planning permission', but the Secretary of State suggests that planning authorities should notify recipients that permission is deemed to have been granted at the time when, in the planning authority's view, the requirements of the notice have been complied with fully. The deemed grant of planning permission might also be entered in the enforcement and stop notice register.

• Where the notice has been issued in respect of a breach of planning control consisting of the demolition of a building, it may require the construction of a ' replacement building' which is as similar as possible to the demolished building, subject to the following:

• it must comply with any requirement imposed by or under any enactment applicable to the construction of buildings;
• it may differ from the demolished building in any respect which, if the demolished building had been altered in that respect, would not have constituted a breach of planning control;
• it must comply with any regulations which are made for these purposes or which modify these provisions.

(If the notice requires the construction of a replacement building then the development consisting of that construction shall be treated as having been granted planning permission, provided that all the requirements of the notice with respect to that construction have been fulfilled).

Content Of Enforcement Notices - Timescales

• The notice must specify the date on which it is to take effect. Subject to the appeal provisions of the 1997 Act, the notice will take effect on that specified date. (Planning authorities will be aware that the notice must allow at least 28 days between the date on which the notice is served and the date on which the notice specifies it shall take effect).
• The notice must specify the period allowed for the required steps to be taken or the specified activities to have ceased. It may specify different periods for different steps or activities. Where different periods are applied to different steps or activities, references in Part VI of the 1997 Act to compliance with an enforcement notice, in relation to any step or activity, are to the period at the end of which the step is required to have been taken or the activity is required to have ceased.

Content Of Enforcement Notices - Additional Requirements

• The notice must specify any additional matters which may be prescribed. Regulation 3 of the Enforcement of Control (No.2) (Scotland) Regulations 1992 requires each notice to specify:

• the reasons why the planning authority considers it expedient to issue the notice. The Secretary of State views this statement of reasons as an important means of enabling any recipient to understand why the notice has been issued. The statement should be framed with this objective in mind and, for example, may include reference to previous correspondence or negotiations over the matters covered by the notice;
• the precise boundaries of the land to which the notice relates, whether by reference to a plan or otherwise. This is best done by means of a plan attached to the notice but, where this is insufficient to identify the boundary exactly, the plan should be supplemented by a brief written description, or by an accurately surveyed drawing on a larger scale. If the precise location of a building is in doubt, the site should be surveyed before the plan is finalised.

• Also, regulations require the notice to be accompanied by an explanatory note giving information about the right of appeal against the notice. Regulation 4 of the Enforcement of Control (No.2) (Scotland) Regulations 1992 requires that every notice served by a planning authority under Section 128(12) must include an explanatory note containing:

• a copy of Sections 127-129 of the 1997 Act, or summary thereof including information that there is a right of appeal to the Secretary of State against the notice, that such an appeal must be made in writing to the Secretary of State before the date on which the notice specifies it is to take effect, and the grounds on which an appeal may be brought;
• notification that appellants must submit to the Secretary of State, either when giving notice of appeal or within 14 days from the date on which the Secretary of State sends them a notice so requiring them, a written statement specifying the grounds on which they are appealing against the enforcement notice and stating briefly the facts on which they propose to rely in support of each of these grounds.

• To assist planning authorities in minimising technical drafting defects, a model enforcement notice is shown at Annex 7 to PAN 54 on Enforcement. This model notice is intended to cater for most enforcement situations although planning authorities will need to ensure that each notice issued corresponds to the specific breach of control it is intended to remedy. It is in plain English to aid completion and comprehension. Plain English is always preferable because a notice must enable each recipient to understand exactly what, in the planning authority's view, constitutes the breach of control and what steps the planning authority require to be taken, or what activities they require to cease, to remedy the breach. Notices are not improved by over-elaborate wording or legalistic terms, although they must be sufficiently precise. An eventual prosecution under Section 136 of the 1997 Act may fail if the Court finds the notice to be incomprehensible.

Variation/Withdrawal Of Enforcement Notices

• Whether or not the notice has taken effect, Section 129 provides that the planning authority may either withdraw it entirely or waive or relax any particular requirement specified in it. In particular, the planning authority may extend the period specified for compliance. Where it withdraws or varies the notice, the planning authority must immediately give notice of that action to every person:

• who has been served with a copy of the notice; or
• who would be served with a copy of the notice, if it were reissued.

(The withdrawal of the notice does not affect the planning authority's power to issue a further notice.)

Appeal Against Enforcement Notice

• Sections 130-132 of the 1997 Act have the intention of facilitating the quick and effective operation of the enforcement notice appeals procedures.

Right of Appeal

• At any time before the date on which a notice is to take effect, a recipient or any other person with an interest in the land may appeal to the Secretary of State against the notice on any of the following grounds:

a. that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;

b. that those matters stated in the notice have not occurred;

c. that those matters stated in the notice (if they occurred) do not constitute a breach of planning control;

d. that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters;

e. that copies of the enforcement notice were not served as required by Section 127;

f. that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or , as the case may be, to remedy any injury to amenity which has been caused by any such breach;

g. that any period specified in the notice in accordance with Section 128(9) falls short of what should reasonably be allowed.

• Regulations require a fee to be paid in respect of the deemed planning application which arises from an appeal made under section 133(7): see paragraphs 29-33 below. Section 133(8) provides that if the fee is not duly paid within the period notified in writing to the appellant by the Secretary of State, then the appeal on ground (a) and the deemed application will lapse and the Secretary of State will not consider them. Initially a reasonable time limit for the payments will be given. In the event of the Secretary of State's assessment of the amount due being challenged, or of a reasonable request for more time to pay, made within the initial time limit, the Secretary of State may extend the period for payment, in writing. In that event he will notify the planning authority accordingly.

Appeals Procedures - Appellants

• Currently an appeal may be made:

• by giving written notice of the appeal to the Secretary of State before the date specified in the enforcement notice as the date on which it is to take effect; or
• by sending such notice to him in a properly addressed and prepaid letter posted to him at such time that, in the ordinary course of post, it would be delivered to him before that date.

The Scottish Office Inquiry Reporters Unit (SOIRU) is considering the possibility of requiring an appeal to be made on a specific Enforcement Appeal Form. In the meantime, a letter will suffice. It is vital that all intending appellants are made aware of this absolute time limit, which the Secretary of State has no power to vary, because an appeal is usually the only way in which a recipient can challenge the planning authority's action in issuing the notice. For each appeal made, appellants will be required to pay a fee as described in paragraphs 29-33 below.

• When giving notice of appeal, or within such time thereafter as may be prescribed (now 14 days from the date of a notice from the Secretary of State requiring a statement to be submitted), appellants are required by Regulation 5 of the Enforcement of Control (No.2) (Scotland) Regulations 1992 to submit to the Secretary of State a written statement specifying the grounds of appeal and stating briefly the facts on which they propose to rely in support of each of those grounds. If appellants fail to provide the required information within the specified time, the Secretary of State may dismiss the appeal.
• When contemplating an appeal, intending appellants should consider carefully the statement of reasons for issuing a notice which the planning authority has provided in accordance with Regulation 3 of the Enforcement of Control (No.2) (Scotland) Regulations 1992 (see paragraph 11 above). If they decide to appeal, they should address their arguments to the alleged breach of planning control and the planning authority's statement. However, if the planning authority state that they are prepared to grant conditional planning permission for the alleged unlawful development, intending appellants should first consider whether it would be preferable to make the appropriate planning application. This should be discussed urgently with the planning authority to establish whether they would be prepared to withdraw the notice if such an application were made. If the proposed conditional permission would be unacceptable, the appeal should state any modified conditions which would make it acceptable.
• Appellants must observe the time limits for the submission of information imposed by Regulation 5 of the Enforcement of Control (No.2) (Scotland) Regulations 1992, as described in paragraph 19 above. If there is a failure to provide the information, the Secretary of State will proceed to dismiss the appeal unless the appellant can show genuine extenuating circumstances for the failure. When an appeal is dismissed under Section 132(3)(a), the deemed planning application will not have been considered and any fee already paid by the appellant will be refunded by SOIRU and the planning authority.

Appeals Procedures - Planning Authorities

• Regulation 6 of the Enforcement of Control (No.2) (Scotland) Regulations 1992 requires that, within 28 days of the Secretary of State notifying the planning authority of an appeal, the planning authority must submit to the Secretary of State and to the appellant a statement indicating the submissions which they propose to put forward on the appeal and including the following matters:

• a summary of the authority's response to each ground of appeal pleaded by the appellant;
• a statement as to whether the authority would be prepared to grant planning permission for the development alleged in the notice to have been carried out and, if so, the details of any conditions they would wish to attach to such permission.

If the planning authority fail to comply with these requirements, the Secretary of State may allow the appeal and quash the enforcement notice. Such action should be exceptional as the time limits provide ample opportunity for a planning authority's statement to be served. If a notice is quashed under Section 132(3)(b) it will cease to have effect and any deemed planning application fee already paid by an appellant will be refunded by the Department and the planning authority. The quashing of a notice in these circumstances does not affect the planning authority's powers to issue another, although care should be taken in the timing and content of any subsequent notice.

Appeals Procedures - General

• On appeal, the Secretary of State has powers, under Section 132(2)(a), to correct any defect, error or misdescription in the notice, or to vary the terms of the notice. However, these powers do not extend to the correction of notices which are so fundamentally defective that their correction would result in a substantially different notice which would cause injustice to the appellant or planning authority.
• Both the appellant and the planning authority have the right to appear before, and be heard by, a person appointed by the Secretary of State. This will normally take the form of a public local inquiry, but may occasionally be by a less formal hearing. SODD Circular 17/1998 gives guidance on the procedures to be followed at inquiries and hearings. Where the grounds of appeal suggest that the issues raised involve dispute about the relevant facts, between the planning authority and the appellant, eg under grounds (c) and (d) of Section 130(1) an inquiry is usually essential. In that event, the Town and Country Planning (Inquiries Procedure) (Scotland) Rules 1997, amended 1998, or the Town and Country Planning (Determination by Appointed Person) (Inquiries Procedure) (Scotland) Rules 1997, amended 1998, will apply.
• In some cases where both principal parties have opted for the appeal to be determined by the written submissions procedure, the complexity of the issues or the need to resolve disputes about the relevant facts may necessitate the hearing of evidence. In such circumstances, SOIRU may make arrangements for an inquiry or hearing to take place and the Reporter may decide that witnesses should be placed under oath.
• When a public inquiry is to be held, the statements provided by the appellant and the planning authority should normally be sufficiently informative and detailed to avoid the need for separate statements of case to be served in terms of Rules 7 and 8 of the Inquiries Procedure Rules (see paras 17 and 20 of Annex B, and paras 12 and 15 of Annex C to SODD Circular 17/1998).
• Most enforcement appeals are delegated to Inquiry Reporters for determination. The classes of delegated appeal are specified in the Town and Country Planning (Determination of Appeals by Appointed Persons) (Prescribed Classes) (Scotland) Regulations 1987 (SI No. 1531), as amended by the Town and Country Planning (Determination of Appeals by Appointed Persons) (Prescribed Classes) (Scotland) Amendment Regulations 1989 (SI No 577). The question whether an appeal is to be 'recalled' for determination by the Secretary of State is decided by reference to the category of breach of planning control alleged in the enforcement notice and the circumstances of the appeal.
• Once the Secretary of State, or a Reporter exercising delegated powers, has decided an appeal, he has no further jurisdiction and cannot reconsider or correct it. A further appeal can be made to the Court of Session, under Section 239 of the 1997 Act, within 6 weeks of the date of decision, on the ground that the action is not within the powers of the Act or that any "relevant requirement" as defined in the section has not been complied with.

Appeal Procedure - Payment And Refund Of Fees

• Regulation 10 of the Town and Country Planning (Fees for Applications and Deemed Applications) (Scotland) Regulations 1997 provides that a fee is normally payable for the deemed planning application arising from an enforcement appeal. Regulation 10 also provides that an appellant will be required to pay a fee to the Secretary of State and a similar fee to the planning authority for the deemed planning application. Payment of the fee should be made immediately it is requested. If the fee is not paid to both the Secretary of State and the planning authority, the Reporter will not consider the possibility of granting planning permission.
• The fee for deemed planning applications arising from enforcement appeals is calculated in the same way as the fee for the corresponding planning application; and there are the same exemptions, except that there are no exemptions similar to those for revised applications. However, for a deemed application, in consequence of an enforcement appeal, a refund is due if the related enforcement notice is withdrawn by the planning authority at any stage; and refunds are due if the related appeals are withdrawn before the date of the public inquiry or hearing, or the date of the site-inspection which is made when the written representations appeal procedure is being used. In addition - and this reflects the fact that the fee is solely for considering a deemed planning application (not for considering appeals as such) - a refund is due if:

1. an enforcement appeal succeeds on any of the grounds (b) to (e) in Section 130(1), unless the appeal involves stationing a residential caravan on land;

2. an enforcement appeal is rejected as invalid, or is formally dismissed for lack of facts in support of the grounds of appeal within a prescribed period;

3. an enforcement notice is quashed and the appeal allowed by the Secretary of State because the planning authority have failed to submit prescribed information within a prescribed period; or

4 an enforcement notice is found to be invalid, or to contain a defect which the Secretary of State cannot correct on appeal.

• When a copy of an enforcement notice is served on a number of individuals, an appeal to the Secretary of State by one person will suspend the effect of the notice for all of them, until that appeal is determined. Everyone who appeals against one enforcement notice will be required to pay the appropriate fee; but intending appellants are free to arrange for one of them to appeal, or to continue the appeal, on all the relevant grounds, while the remainder withdraw their appeals. When there is only one appeal, only one fee is payable. However, if that appellant subsequently withdraws the appeal after the statutory appeal period has expired, the enforcement notice immediately becomes effective; and all the other recipients of the notice would lose their protection from possible prosecution for breach of the requirements in the notice. Care must also be taken to ensure that all the grounds of appeal are pleaded at the outset, as it may not be possible to add additional grounds later.
• One effect of charging for deemed planning applications in this way is that anyone who carries out unauthorised development will not be able to obtain planning permission for it, after the event, without paying any fee which would have been due on a prior planning application. However, if appellants have already applied to the planning authority for planning permission before the enforcement notice was issued, and have paid the appropriate fee, and providing their application or an appeal to the Secretary of State against its refusal had not been determined on or before the date of issue of the enforcement notice, the Fees Regulations provide that they will not need to pay a further fee for their 'deemed application'. This provision is intended to prevent an appellant from having to pay twice for an application to regularise unauthorised development.
• In accordance with the provisions of the Fees Regulations, a fee is payable in respect of the deemed planning application on an appeal against each enforcement notice issued by the planning authority. The amount of the fee payable depends upon the precise development to which the notice relates. When one notice is issued, alleging a number of different activities (either changes of use or operations) which fall either within more than one category of development, or in the same category of development specified in Part llI of the Schedule to the Fees Regulations, the amount of the fee payable is the highest amount calculated. However, when more than one enforcement notice has been issued in respect of activities on the same site, and appeals are submitted in respect of more than one of these notices, a separate fee is payable in respect of the development to which each of those notices relates. For that reason, planning authorities are asked to consider the practicability of embodying in a single enforcement notice allegations of one or more breaches of planning control involving the same land.

Execution Of Works Required By Enforcement Notice (Direct Action)

• Section 135 of the 1997 Act provides planning authorities with the 'default' powers to enter enforcement notice land and carry out the unfulfilled requirements of a notice themselves. Section 135(10) provides that it is an offence for any person to wilfully obstruct a person acting in the exercise of those powers. Any person found guilty of such an offence will be liable, on summary conviction, to a fine not exceeding level 3 of the standard scale.
• These powers enable the planning authority to carry out any steps required by an enforcement notice, including such steps to discontinue a use of land (which by virtue of Regulation 2(1) of the Town and Country Planning (Minerals) (Scotland) Regulations 1998, includes the discontinuance of mining operations) and such steps for the purpose of making development comply with the terms of any planning permission which has been granted in respect of the land, or for the purpose of removing or alleviating any injury to amenity which has been caused by the development.
• This provision does not mean that planning authorities will themselves be able to stop illegal uses of land (because only the person who is actually carrying out the use is capable of stopping it entirely). But where, for example, a storage use is required to be discontinued, and whether or not the notice specifically requires the removal of stored items, it is open to planning authorities to remove those items as a step towards discontinuing the use and continue to remove such items which may appear on the land. Where, as an alternative to requiring an entire unauthorised building to be removed, a notice requires the building to be altered, in order to remove or alleviate an injury to amenity, or to make the building comply with the terms of a planning permission granted for the erection of a similar building on the land, planning authorities may carry out those works themselves.

Offence Where Enforcement Notice Not Complied With

• Section 136 of the 1997 Act provides that it continues to be an offence for owners of land to be in breach of an enforcement notice (ie to fail to take the required steps, or to fail to cease an activity required to cease, within the specified time), although it will be a defence if they show that they did everything they could be expected to do to secure compliance. It is also an offence for those (other than the owners) who control, or have an interest in, the land to carry on any activity which is required to cease, or cause or permit such an activity to be carried on.
• Where any persons charged with an offence have not been served with a copy of the notice, and the notice is not contained in the appropriate register kept under Section 147 of the 1997 Act, it will be a defence for them to show that they were not aware of the existence of the notice.
• An offence may be charged by reference to any day or longer period, and a person may be convicted of a second or subsequent offence by reference to any period of time following the preceding conviction. A person guilty of an offence under this section is liable:

• on summary conviction, to a fine not exceeding £20,000;
• or on conviction on indictment to an unlimited fine.

In determining the amount of any fine, the Court is to have regard to any financial benefit which has accrued or appears likely to accrue in consequence of the offence. Accordingly, planning authorities should always be ready to make available any known details about the proceeds resulting, or likely to result, from the offence, so that the Court can take account of them in sentencing.

Environmental Assessment

• Before issuing an enforcement notice, the planning authority should consider if the development which has led to the breach of planning control comes within a description of development in either Schedule 1 or Schedule 2 of the Environmental Assessment (Scotland) Regulations 1988 and, if within Schedule 2, whether the development would be likely to have significant effects on the environment. Where it appears to the planning authority that this is the case, they are required by Regulation 11A of the EA Regulations to serve a "notice of unauthorised development", with the enforcement notice. The Environmental Assessment (Scotland) Amendment Regulations 1997 amend the 1988 EA Regulations so that in the case of a successful appeal against an enforcement notice or an appeal under Section 130(1)(a) of the 1997 Act, where a notice of unauthorised development has been served, planning permission cannot be granted without an environmental assessment having taken place. Further guidance on these matters is contained in SODD Circular 25/1997.
• It should be noted that revised and updated Regulations which replace the Environmental Assessment (Scotland) Regulations 1988 as amended by the Environmental Assessment (Scotland) Amendment Regulations 1997 will be available later in 1999.

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