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Options For Change
19.0 ENFORCEMENT
19.1 Notification of the commencement of development
Proposal: A developer should notify a planning authority when development commences. This would assist planning authorities in monitoring and enforcing the control of development.
Source: School of Planning & Housing, Edinburgh College of Art/ Heriot Watt University and Brodies WS, Review of Planning Enforcement, SOCRU, 1997, para.12.16.
Present position: There is no such obligation at the present time, although such a notice is required under the Building Regulations.
Implementation: Such a requirement would require specific provision to be inserted into the 1997 Act and an amendment of ss.27, 58 and 59. The notification could be linked to the initiation of development as defined in s.27.
Discussion:
- consideration would have to be given to the sanction for failing to notify the commencement of development. One possibility would be to make it a criminal offence. That would seem strange given that unauthorised development is not initially a criminal offence. An alternative could be that the time limit on a planning consent would continue to run until notice of commencement had been given.
- consideration might also be given to the introduction of something on the lines of the building warrant 'completion certificate' to ensure compliance with plans and conditions. This would have resource implications for planning authorities.
19.2 Publicity for enforcement action
Proposal: Neighbouring interests should be notified by planning authorities of the service of an enforcement notice.
Source: Getting Involved in Planning, Consultation Paper, SEDD, 2001, para.65. See too Analysis of Consultation Responses.
Present position: Developments which receive planning permission through the enforcement process, rather than in response to a planning application, may impact on neighbours but are not subject to neighbour notification.
Implementation: The proposal is that neighbours would be informed when an enforcement notice is served. The proposal received wide public support during the consultation but less support from local authorities. The neighbour notification requirement in Article 9 of the General Development Procedure Order 1992 could be used as a model.
19.3 Power to levy fiscal fines
Proposal: Fiscals should have power to levy fines for some classes of planning offence.
Source: School of Planning & Housing, Edinburgh College of Art/ Heriot Watt University and Brodies WS, Review of Planning Enforcement, SOCRU, 1997, para.12.21.
Present position: Planning offences are prosecuted by way of proceedings in the sheriff court.
Implementation: Procurator fiscals were given power, by the Criminal Justice (Scotland) Act 1987, as amended by the Criminal Procedure (Scotland) Act 1995, to deal with certain minor offences without resorting to prosecution. The power would have to extended to include relevant planning offences.
Discussion:
- the availability of fiscal fines might encourage planning authorities to make greater use of the criminal law to enforce planning control.
- it would be necessary to identify the offences for which fiscal fines could be levied. The research report gives the example to failing to comply with a planning contravention notice. It might also be applied to making false statements and obstructing a planning officer in the course of his duties. Consideration could be given to making this an option for failing to comply with a confirmed enforcement notice or with a breach of condition notice.
- it would be necessary to balance the ease of using this mechanism against the danger of trivialising the offence.
19.4 Breach of condition notice to have continuing effect
Proposal: A breach of condition notice should have continuing effect so that sanctions could be invoked against any subsequent breach of the condition.
Source: School of Planning & Housing, Edinburgh College of Art/ Heriot Watt University and Brodies WS, Review of Planning Enforcement, SOCRU, 1997, para.12.22.
Present position: Section 138 of the 1997 Act provides that compliance with an enforcement notice does not discharge its effect. It remains in force and can be invoked against a repetition of the breach of control. That seems not to be the case with a breach of condition notice. Compliance arguably discharges the notice.
Implementation: An amendment would be required to s.145 of the 1997 Act.
19.5 Recording of enforcement and breach of condition notices
Proposal: Planning authorities should be able to record enforcement and breach of conditions notices in the Register of Sasines or in the Land Register for Scotland.
Source: School of Planning and Housing, Edinburgh College of Art/ Heriot Watt University, Review of Planning Enforcement, SOCRU, 1997, para.12.23.
Present position: A prospective purchaser has to rely on a property enquiry certificate to be alerted to such a notice. Although ignorance of the existence of such a notice is not a defence (it is if the planning authority fail to register an enforcement notice in the planning register (s.136(7)), it can cause difficulties in the event of a prosecution.
Implementation: An amendment would be required to ss.127 and 145 of the 1997 Act. The research report points out that planning authorities would need to give greater attention to the description of the subject land if the notice is to be accepted for recording.
19.6 Stop orders
Proposal: Planning authorities should be able to obtain a stop order from the sheriff court or the Court of Session to restrain or prevent a breach, or an anticipated breach, of control.
Source: School of Housing and Planning, Edinburgh College of Art/ Heriot Watt University and Brodies WS, Review of Planning Enforcement, SOCRU, 1997, paras.12.24-12.25.
Present position: A planning authority may want to bring an immediate stop to a breach of control which is giving rise to serious planning consequences until such time as enforcement action bites. There are two options. First of all, where an enforcement notice has been served (and in some cases, in advance of service), a planning authority may serve a stop notice under s.140 of the 1997 Act. The notice prohibits the activity(ies) listed in the notice. Non-compliance is an offence. The notice is an interim measure to hold the position until the time for compliance with the enforcement notice has passed or the notice has been quashed or withdrawn. The research found little use being made of stop notices, largely because of the compensation implications.
Secondly, and whether or not other enforcement action has been taken, a planning authority may seek an interdict under s.146 of the 1997 Act. However, interim interdict is granted at the risk of the planning authority. If it is later shown to be excessive, the authority could face a claim for damages. For this reason, interdict is not much used in practice either.
Implementation: Primary legislation would be required. A 'stop order' procedure could replace the stop notice and interdict provisions in the 1997 Act.
Discussion: Surprisingly, the research report suggests that the circumstances in which compensation would follow the service of a stop order would be similar to the current stop notice provisions. That seems to defeat the whole purpose of the suggested change. It has to be said that it is difficult to see how these compensation provisions could be further reduced without unfairly penalising those carrying on the activity which is stopped.
19.7 Discouraging appeals
Proposal: The lodging of an appeal against an enforcement notice should not suspend its effect in all cases. Furthermore, reporters should have the power to impose a penalty on an applicant (calculated perhaps on the gain to the applicant of the breach of control) where an appeal is considered unreasonable.
Source: School of Planning & Housing, Edinburgh College of Art/ Heriot Watt University & Brodies, Review of Planning Enforcement, SOCRU, 1997, paras.12.26 and 12.27.
Present position: Section 131(3) of the 1997 Act provides that where an appeal is lodged against an enforcement notice, the notice shall be of no effect pending the final determination or withdrawal of the appeal. The research report notes that, because of this, appeals may be used as a tactic to buy time.
Implementation: An amendment would be required to s.131(3) of the 1997 Act and a power to impose a penalty would need to be added.
Discussion:
- bringing the notice into immediate effect could provide an alternative approach to a stop notice or order or interdict. Presumably the time for compliance would start running from the date of service of the notice.
- the research report does not indicate the circumstances in which it might be appropriate for an enforcement notice to take immediate effect.
- there are precedents from the field of environmental protection for an enforcement notice taking effect notwithstanding an appeal (see s.15(9) of the Environmental Protection Act 1990).
- the consequences of an enforcement notice taking effect in this way could be severe for economic activity and jobs.
- if the enforcement notice is quashed, compensation would presumably have to be available on the same basis as for a stop notice.
- a reporter may already award expenses against a party to an appeal in the event of unreasonable behaviour. The research report considers that the measure of the penalty might be measured by the gain to the appellant rather than the loss to the planning authority.
19.8 Time limit for commencing proceedings
Proposal: The time limit for commencing proceedings requires clarification.
Source: School of Planning & Housing, Edinburgh College of Art/ Heriot Watt University, Review of Planning Enforcement, SOCRU, 1997, para.12.29.
Present position: The Criminal Procedure (Scotland) Act 1995, s.136 provides that summary proceedings for an enforcement offence must commence within six months of the occurrence of the offence. There is some uncertainty about what this means in practice (see N Collar, Planning (2 nd edn., W Green), p.189) and some prosecutions have not proceeded because of the time limit.
Implementation: This might require legislative clarification.
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