The Scottish Government

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Circular 4/1999

INTRODUCTION

1. The Government is committed to providing a modern, effective and efficient planning system, which operates in the interest of the local community and the environment. An important element of the planning system is the powers available to planning authorities to enforce planning control. However, those powers are only useful enforcement tools if they are effectively used by planning authorities.

2. This Circular and the attached Annexes set out Government policy on the use of the Enforcement Powers contained in the consolidated Town and Country Planning (Scotland) Act 1997. The general approach to enforcement of planning controls is equally applicable to other types of enforcement. Separate enforcement guidance can be found on the following :

• Listed Buildings (Historic Scotland Circular No. (HS) 1/1992 and paras. 3.1-3.11 of Historic Scotland's Memorandum of Guidance on Listed Buildings & Conservation Areas 1998);
• Conservation Areas (Schedule 4 of the Town and Country Planning (Listed Buildings & Buildings in Conservation Areas) (Scotland) Regulations 1987);
• Advertisements (Scottish Office Development Department Circular 10/1984);
• Special Enforcement Notices (The Town and Country Planning (Special Enforcement Notices) (Scotland) Regulations 1992);
• Hazardous Substances Contravention Notices (The Town and Country Planning (Hazardous Substances) (Scotland) Regulations 1993);
• Tree Preservation Orders (Scottish Office Environment Department Circular 9/1992);

3. Previous advice was contained in Circulars 8/1992 and 36/1992 and took into account the new and improved powers to enforce planning control given to planning authorities by Sections 33 to 43 of The Planning and Compensation Act 1991. This Circular consolidates that guidance and reflects the outcome of the recent research report "Review of Planning Enforcement" by the School of Planning and Housing, Edinburgh College of Art/Heriot Watt University and Brodies WS (HMSO IBSN 0 748 66091 7). That research was based on a survey of planning authorities and discussions with Crown Office. One of the recommendations arising from the report was that the Scottish Office should issue an updated circular on Planning Enforcement, and that is the purpose of this circular.

4. Much of this circular and its Annexes refer to the powers and procedures available to planning authorities in dealing with planning enforcement issues. Advice on best practice is set out in Planning Advice Note 54 on enforcement, which also reproduces model forms. Detailed guidance on enforcement powers is set out in the annexes to this circular, as follows:

Annex A - Definitions used and time limits on Enforcement Action

Annex B - Planning Contravention Notices

Annex C - Rights of Entry

Annex D - Certificates of Lawful Use or Development

Annex E - Enforcement Notices

Annex F - Stop Notices

Annex G - Breach of Condition Notices

Annex H - Interdicts to Restrain Breaches of Planning Control

Annex I - Land Adversely Affecting Amenity of Neighbourhood

THE GENERAL APPROACH TO ENFORCEMENT

5. The Town and Country Planning (General Permitted Development) (Scotland) Order 1992 grants planning permission to certain specified classes of development, thus obviating the need for a planning application in those cases. Any other class of development is likely to require an application for planning permission. It is for would-be developers to take steps to ascertain whether such an application is required. For this purpose, the 1997 Act Sections 37-39 provide that they may approach the planning authority for a determination.

6. Nothing in this guidance should be taken as condoning any breach of planning law. Planning authorities have a general discretion to take enforcement action against any breach of planning control if they consider such action to be expedient, having regard to the provisions of the development plan and any other material considerations. When they are considering whether any formal enforcement action is an expedient remedy for unauthorised development, planning authorities should be guided by the following considerations:-

1. Parliament has given planning authorities the primary responsibility for taking whatever enforcement action may be necessary, in the public interest, in their administrative area.

2. Decisions in such cases, and any resulting action, should be taken without undue delay. Failure to do so could constitute grounds for a finding of maladministration by the Commissioner for Local Administration in Scotland.

3. In considering any enforcement action, the planning authority, with regard first of all to the Development Plan, should consider whether the breach of control would unacceptably affect public amenity or the use of land and buildings meriting protection in the public interest.

4. Enforcement action should always be commensurate with the breach of planning control to which it relates. For example, it is usually inappropriate to take formal enforcement action against a trivial or technical breach of planning control which has no material adverse planning implications. However planning authorities should be aware that failure to take enforcement action against a breach of planning control could be subject to a referral to the Commissioner for Local Administration in Scotland ; and

5. On the failure of an initial attempt by the planning authority to persuade the owner or occupier of the site voluntarily to remedy the harmful effects of unauthorised development, further negotiations should not normally be allowed to hamper or delay whatever formal enforcement action may be required to make the development acceptable on planning grounds, or to compel it to stop. Planning authorities should bear in mind the statutory time limits for taking enforcement action and, in particular, the possibility that a referral to the Procurator Fiscal, for him to determine whether to initiate a criminal prosecution, may need to be made promptly in those cases where breaches have to be prosecuted within 6 months of the date on which the offence was committed. This is not the date of the alleged breach of planning control but the last date of failure to comply with the Notice requiring the breach to be remedied.

7. The integrity of the development control process depends upon the planning authority's readiness to take effective enforcement action when necessary. Public respect for the development control system is quickly undermined if unauthorised development, which is unacceptable on its planning merits, is allowed to proceed without any apparent attempt by the planning authority to intervene before serious harm to amenity results from it. The enactment of the new and improved powers in 1991 ensured that planning authorities have a wide choice of available options for taking enforcement action, whenever they consider it appropriate. Authorities need to assess, in each case, which power (or mix of powers) is best suited to dealing with any particular suspected or actual breach of control to achieve a satisfactory, lasting and cost-effective remedy. Rapid initiation of enforcement action is usually vital to prevent a breach of planning control becoming well established and more difficult to remedy.

WHERE DEVELOPMENT IS CARRIED OUT WITHOUT PERMISSION

8. Section 33 of the 1997 Act specifically provides that an application for planning permission may relate to buildings or works constructed or carried out, or a use of land instituted, before the date of the application. Accordingly, where the planning authority's assessment clearly indicates that planning permission should be granted for development which has already taken place, the correct approach is to suggest to the person responsible for the development that a retrospective planning application (together with the appropriate application fee) should at once be submitted to the planning authority. If such a retrospective application contains unacceptable elements the planning authority may reject it or grant it subject to conditions. Also, it may be appropriate to consider whether any other public authority (eg the roads or environmental health authority) is better able to take remedial action.

9. It is clearly unsatisfactory that anyone should carry out development requiring planning permission, without submitting an application and paying the appropriate application fee. Nevertheless, an enforcement notice should not normally be issued solely to 'regularise' development which is acceptable on its planning merits, but for which permission has not been sought. In such circumstances, it is preferable to use the ' planning contravention notice' as a means of establishing what has taken place on the land and persuading the owners or occupiers to seek permission for it, if permission is required. The owners or occupiers of the land can be told that, without a specific planning permission, they may well be at a disadvantage if they subsequently wished to sell the land and have no evidence of a permission having been granted for development which comprises an important part of the valuation.

10. It could be regarded as 'unreasonable' for the planning authority to issue an enforcement notice solely to remedy the absence of a valid planning permission, if it is concluded, on an enforcement appeal to the Secretary of State, that there is no significant planning objection to the breach of control alleged in the enforcement notice. Accordingly, planning authorities who issue a notice in these circumstances run the risk of an award against them of the appellant's costs in the enforcement appeal. This accords with the general advice set out in paragraph 7 of Circular 6/1990.

WHERE UNAUTHORISED DEVELOPMENT CAN BE MADE ACCEPTABLE BY THE IMPOSITION OF CONDITIONS

11. A planning authority may consider that development has been carried out without the requisite planning permission but the development could be made acceptable by the imposition of planning conditions (for example, to control the hours, or mode, of operation; or to carry out a landscaping scheme). In such cases the authority should invite the owner or occupier of the land to submit an application, and pay the appropriate application fee, voluntarily. It can be pointed out to the person concerned that the authority does not necessarily wish the activity to cease; but they have a public duty to safeguard amenity by ensuring that development is carried out, or continued, within acceptable limits, having regard to local circumstances and the relevant planning policies. Planning authorities should bear in mind the need to consult on such applications in the normal way and the possible effect of such development on the functions of statutory undertakers.

12. If, after a formal invitation to do so, the owner or occupier of the land refuses to submit a planning application in these circumstances, the planning authority should consider whether it is expedient to issue an enforcement notice. Section 128 of the 1997 Act provides that one of the purposes for which the planning authority may, in an enforcement notice, require remedial steps to be taken is for 'remedying any injury to amenity which has been caused by the breach'. For that purpose, Section 128(5) of the 1997 Act provides that an enforcement notice may require, among other things, 'the carrying out of any building or other operations' (paragraph (b)); or 'any activity on the land not to be carried on except to the extent specified in the notice' (paragraph (c)).

13. Accordingly, where an owner or occupier of land refuses to submit a planning application for the purpose of enabling the planning authority to grant conditional planning permission, the authority would be justified in issuing an enforcement notice if they consider that the unauthorised development has resulted in any injury to amenity, or damage to a statutorily designated site, which can only be satisfactorily removed or alleviated by imposing conditions on a grant of planning permission for the development.

14. If an enforcement notice is issued to enable the planning authority to grant conditional planning permission, they should explain clearly (in their statement of reasons for issuing the notice) what injury to amenity, or damage to the site, has been caused by the unauthorised development and how their conditional grant of permission will effectively remedy what has occurred. The owners or occupiers of the land will then have no doubt about the purpose of the enforcement action, or what they are being required to do in order to remove or alleviate the perceived injury to amenity.

WHERE THE UNAUTHORISED DEVELOPMENT IS UNACCEPTABLE ON THE SITE BUT RELOCATION IS FEASIBLE

15. It is not the planning authority's responsibility to seek out and suggest to the owners or occupiers of land on which unauthorised development has taken place, an alternative site, to which the activity might be satisfactorily relocated. But if, for example, as part of their economic development functions, the authority is aware of a suitable alternative site, it will usually be helpful to suggest it and to encourage removal of the unauthorised development to it. An authority should not suggest a site outwith its own area unless it has sought agreement from the planning authority responsible for that site.

16. If an alternative site has been suggested, the planning authority should make it clear to the owners or occupiers of the site where unauthorised development has taken place that they are expected to relocate to the alternative site (or some other site they may prefer). The planning authority should set a reasonable time limit within which relocation should be completed. What is reasonable will depend on the particular circumstances, including the nature and extent of the unauthorised development; the time needed to negotiate for, and secure an interest in, the alternative site; and the need to avoid unacceptable disruption in the re-location process. If a timetable for relocation is ignored, it will usually be expedient for the planning authority to issue an enforcement notice. In that event, the compliance period in the notice should specify what the planning authority regard as a reasonable period to complete the relocation, in accordance with Section 128(9) of the 1997 Act.

WHERE THE UNAUTHORISED DEVELOPMENT IS UNACCEPTABLE AND RELOCATION IS NOT FEASIBLE

17. Where, in the planning authority's view, unauthorised development has been carried out and there is no realistic prospect of its being relocated to a more suitable site, the owners or occupiers of the land should be informed that the authority is not prepared to allow the operation or activity to continue at its present level of activity, or (if this is the case) at all. If the development nevertheless provides valued local employment, the owners or occupiers should be advised how long the planning authority is prepared to allow before the operation or activity must stop, or before it must be reduced to an acceptable level of intensity.

18. If agreement can be reached between the operator and the planning authority about the period to be allowed for the operation or activity to cease, or be reduced to an acceptable level, and the person concerned honours the agreement, formal enforcement action may be avoided. But planning authorities need to be aware of the possibility of intensification after expiry of the statutory period for enforcement action. In the event of an agreement being reached close to expiry of the statutory time period for enforcement then an enforcement notice should still be served and an explanation given to the operator as to why this is being done. This will preserve the position under Section 124(4)(b)of the 1997 Act as it will give the planning authority a further 4 years to take further enforcement action should this be necessary, for example in the event of the operator breaching the terms of the agreement which he has entered into with the planning authority. In the event of the enforcement notice being served and the operator agreeing to restrict his activities in accordance with the requirements placed upon him by the planning authority then the planning authority can withdraw the enforcement notice in terms of Section 129 of the 1997 Act. If no agreement can be reached, the issue of an enforcement notice will usually be justified, allowing a realistic compliance period for the unauthorised operation or activity to cease, or its scale to be acceptably reduced. Any difficulty with relocation will not normally be a sufficient reason for delaying formal enforcement action to remedy unacceptable unauthorised development.

WHERE THE UNAUTHORISED DEVELOPMENT IS UNACCEPTABLE AND IMMEDIATE REMEDIAL ACTION IS REQUIRED

19. Where, in the planning authority's view, unauthorised development has been carried out and the planning authority consider that:

1. the person responsible for the alleged breach will not submit a planning application for it (despite being advised to do so); and

2. the alleged breach is causing serious harm to public amenity in the neighbourhood of the site,

the planning authority should normally take vigorous enforcement action (including, if appropriate, the service of a stop notice or an application for an interdict) to remedy the alleged breach urgently, or prevent serious harm to public amenity.

UNAUTHORISED DEVELOPMENT BY SMALL BUSINESSES OR SELF-EMPLOYED PEOPLE

20. Although some breaches of control are clearly deliberate, a planning authority may find that the owner or operator of a business, particularly a small business, or a self-employed person, has carried out unlawful development in good faith, believing that no planning permission is needed for it. The cost of responding to enforcement action may represent a more substantial financial burden on a small business, or self-employed person. Planning authorities should therefore have in mind that there might be the occasional inadvertent lapse by small businesses and self-employed persons when dealing with planning legislation and should take this into consideration when deciding how to handle a particular case. However, where there is clear evidence of a persistent offender abusing the planning legislation, and the planning authority have been unable to resolve the issue through negotiation, the issue of an enforcement notice will be justified.

21. The initial aim should be to explore - in discussion with the owner or operator - whether the business can be allowed to continue on the site at its current level of activity, or perhaps less intensively. The planning authority should carefully explain the planning objections to the current operation of the business and, if it is practicable, suggest ways to overcome them.

22. This may result in the grant of a mutually acceptable conditional planning permission, enabling the owner or operator to continue in business at the site without harm to local amenity. If the site's owner or occupier is at first reluctant to negotiate with the planning authority, the service of a 'planning contravention notice' may help to convey the planning authority's determination not to allow the development to go ahead by default.

23. If a mutually satisfactory compromise cannot be reached, and formal enforcement action is necessary, the planning authority should make their intentions clear, at the outset, to the owner or operator of a small business or a self-employed person. Unless it is urgently needed, formal enforcement action should not come as a 'bolt from the blue' to a small business or self-employed person. It should be preceded by informal discussion about possible means of minimising harm to local amenity caused by the business activity; and, if formal action will clearly be needed, by discussion of the possible relocation of the business to another site.

24. As explained in paragraph 15, it is not the planning authority's responsibility to take the initiative in finding or providing a suitable alternative site. If formal enforcement action is likely to compel a small business or self-employed person to relocate their trading activities, the planning authority should aim to agree on a timetable for relocation which will minimise disruption to the business and, if possible, avoid any permanent loss of employment as a result of the relocation.

25. Once an enforcement notice has taken effect, planning authorities should bear in mind that, where the circumstances justify it, Section 129 of the 1997 Act enables them to withdraw the notice; or to waive or relax any requirement in it, including the compliance period. A reasonable compliance period, or an extension of the initial period, may make the difference between enabling a small business or self-employed person to continue operation, or compelling them to cease trading.

26. The Government remains committed to fostering business enterprise, provided that the necessary development can take place without unacceptable harm to local amenity. Planning authorities should bear this in mind when considering how best to deal with unauthorised development by small businesses. Nevertheless, effective enforcement action is likely to be the only appropriate remedy if the business activity is causing continuing harm.

UNAUTHORISED DEVELOPMENT BY PRIVATE HOUSEHOLDERS

27. When they are considering the possibility of enforcement action involving unauthorised development by a private householder, planning authorities should bear in mind that the householder may have relied on 'permitted development' rights in the General Permitted Development Order (GPDO) as authorisation for the development, but a specified limitation has been exceeded in carrying it out. In these circumstances, it is inappropriate to initiate a prosecution of a householder under Section 145(8) (prosecution for the offence of failure to secure compliance with the limitation imposed on a grant of planning permission by virtue of the GPDO), unless the breach of condition notice served on the householder includes a full explanation of the allegedly unauthorised development and they have failed to take satisfactory steps to regularise it, despite being allowed adequate time to do so.

28. In considering whether it is expedient to take enforcement action against development carried out in excess of the permission granted by the GPDO, the planning authority should have full regard to what would have been permitted if the development had been carried out in strict accordance with the relevant provisions. Planning authorities should not normally take enforcement action in order to remedy a slight variation in excess of what would have been permitted by virtue of the GPDO provisions. However the planning authority should take into account any third party representations received in respect of the matter.

ENFORCEMENT OF PLANNING CONTROL OVER MINERAL WORKING

29. The general principles and policies applicable to enforcement apply equally to cases of mineral working. Nevertheless, particular problems may be posed by unauthorised developments of this type. In particular, the issue of an enforcement notice, combined where appropriate with an immediately effective stop notice, may prevent damage either to the site itself or to the surrounding area, which would otherwise be irreversible or irremediable. Where necessary, planning authorities may decide to apply for an interdict.

30. Examples of situations requiring rapid enforcement action might be where a mineral operator is moving soil materials in contravention of clear planning conditions, so as to jeopardise the restoration and aftercare of the site; or if unauthorised excavations outside the permitted boundary cause concern for the safety and stability of surrounding land. However, it always remains preferable for liaison and contacts between planning authorities and mineral operators to be sufficiently good to avoid such contraventions, and to resolve any problems through discussion and co-operation.

THE ORGANISATION OF ENFORCEMENT FUNCTIONS BY PLANNING AUTHORITIES

31. How planning authorities organise the administrative function of enforcing planning control is for each authority to decide. The organisation should correspond to the volume and complexity of enforcement casework in each planning authority's area and be sufficiently flexible to adapt to short term increases in the demand for enforcement.

32. All authorities should ensure that there is a close and co-operative working relationship between the Planning Department and the Solicitor's (or Secretary's or Chief Executive's) Department. Planning Departments should also liaise closely with Building Control Departments (although the enforcement powers available to planning officials differ considerably from those available to building control officers). Without such effective working relationships, formal enforcement action (which often depends for its success upon speed of assessment and process) may be hampered by poor communications and misunderstandings. Public criticism is then likely, especially if statutory time limits for taking enforcement action are allowed to expire because of administrative delay.

33. Unless they have done so recently, all planning authorities are recommended to carry out a thorough review of their procedural arrangements for planning enforcement and, where necessary, to introduce revised arrangements. The research report also indicated that planning authorities making most effective use of enforcement powers had effective arrangements operating for delegation of enforcement powers. Delegation can be achieved by setting out clear enforcement policies in their development plan, and written procedures for enforcement action. Planning authorities should therefore consider the preparation of enforcement manuals which set out written procedures for enforcement. Paragraph 17 of Planning Advice Note 54 on enforcement provides advice on the content of such manuals.

34. When complaints from community councils, or members of the public, about alleged breaches of planning control are received they should always be properly recorded and investigated. If the planning authority decide to exercise their discretion not to take formal enforcement action, following a complaint, they should be prepared to explain their reasons to any organisation or person who has asked for an alleged breach of control to be investigated. Planning authorities should also consider the desirability of maintaining a register of complaints which may justify enforcement action.

35. Effective enforcement plays a significant part in protecting the rural and urban environment. In responding to complaints against unauthorised development, enforcement action maintains the integrity of the development control system. The range of enforcement powers allows the enforcement response to be more appropriate, speedier and more successful.

MANPOWER AND FINANCIAL IMPLICATIONS

36. Since the main purpose of the guidance in this circular is to update and consolidate previous advice on planning enforcement rather than introducing substantial new requirements, no significant effect on local government manpower or expenditure is expected.

FURTHER DEVELOPMENT

37. The Scottish Office has also approached the Convention of Scottish Local Authorities for their assistance in taking forward those research recommendations addressed to COSLA and planning authorities.

PREVIOUS CIRCULARS CANCELLED OR AMENDED

38. This circular supersedes Scottish Office Development Department (SDD) circulars 8/1992 and 36/1992, which are cancelled.

FURTHER COPIES AND ENQUIRIES

39. Enquiries about the content of this Circular should be addressed to Mrs Anne Lillico, Planning Division, Area 2-H, Victoria Quay, Edinburgh EH6 6QQ (Telephone 0131-244 7825). Further copies and a list of current planning circulars may be obtained from Miss Lisa Mullen at the same address (Telephone 0131 244 7066).

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