« Previous | Contents | Next »
Listen
ENFORCEMENT
Q50. Many elected members are not aware of the resource implications of the current process. It is felt that proactive enforcement will be resource-intensive. The raised expectations may have yet more resource implications.
A50. Planning authorities allocate resources to enforcement from within their overall budget. The resources allocated to enforcement varies greatly between authorities down to the level that some authorities have dedicated enforcement officers and others don't. Pro-active enforcement may not make a difference to costs as authorities are required at present to investigate any allegation of a breach of planning control reported to them. Any subsequent action is discretionary to the planning authority, and dependent on the nature of the breach, and the new legislation does not change any of that. Dealing with 'major' breaches would take up more resources, however we would anticipate that if breaches are detected earlier (while they are 'minor' as opposed to 'major') then they could be resolved more quickly and with less drain on resources.
Q51. Enhanced resourcing to give effect to the new enforcement powers? These are likely to be time-consuming and misused, with the potential to slow down the development process.
A51. The new enforcement powers are alternatives to existing powers, and there is no statutory requirement on planning authorities to use them. Powers may be used when and if breaches of planning control occur. It is up to planning authorities, when allocating their budgets, to decide what level of resources to allocate to enforcement. There is no evidence to suggest that the new enforcement powers will be misused. In the event that enforcement powers are misused the planning authority would be liable to pay compensation. We envisage that the new arrangements, with the removal of some of the rights to appeal against an enforcement process, are more likely to speed up the process of planning control.
Q52. In considering a developer's "track record" on compliance, will the authority be able to have regard to local, national, international conduct?
A52. The only place where a developer's track record will appear is when they fill in the Notification of Initiation of Development which asks as additional information that they declare any formal enforcement action taken against them under the planning legislation. This would be enforcement notices, stop notices, breach of condition notices, interdicts and active temporary stop notices. This would require them to declare anything local and national ( i.e. action taken by other planning authorities in Scotland).
Q53. How long does the developer have to remedy the breach of conditions until the enforcement notice / penalty "bites"?
A53. That is a matter for the planning authority. When the planning authority issues a breach of condition notice or an enforcement notice, the authority sets a 'reasonable period' for the developer to comply with the terms of the notice. Obviously this will vary depending on the amount of work required to remediate the problem, but on average it is about 3 months.
The full timescale is 28 days 'notification period' followed by the 'compliance period'. Once the compliance period expires (if the notice has not been complied with) the planning authority can issue a fixed penalty notice or seek a prosecution. They also have the power to take direct action (in addition to the FPN or prosecution) to carry out the work themselves and then recover the costs from the developer.
Q54. If the initial fixed penalty notice is for £1000, and the maximum is for £5000, do the increments of £500 mean that a developer has to be issued with 9 notices to incur the maximum fine?
A54. Yes, but the first notice does not need to have expired before the next one can be issued. You could issue 9 consecutive notices over 9 days for example. The value of £500 was the subject of one of the questions in the current enforcement consultation -Q3 of the consultation paper on Enforcement asked for views on whether the proposed amount is sufficient.
Q55. If an initial enforcement notice is appealed against within 28 days. Can subsequent enforcement notices also be appealed against?
A55. Yes, but if the appeal is unsuccessful then, bearing in mind that subsequent notices are going to be virtually identical, it seems unlikely that any appeal would be considered by the DPEA. We are also removing the right to appeal on the grounds that permission should be granted or a limitation lifted. This is the ground on which the majority of appeals are made, and we anticipate that the number of appeals will drop substantially.
Q56. Can a fixed penalty notice be appealed against?
A56. No - if the recipient wishes to challenge it then they can withhold payment. If the planning authority then seeks a prosecution then they will have the opportunity to state their case in court.
Q57. Why are notices of completion of development signed off by developers? It was felt that it would be better if (analogous to Building Standards), these notices were agreed by relevant planning authority.
A57. The purpose of a planning Notification of Completion of Development is to inform the planning authority that the developer believes they have completed the development. It is then for the planning authority to decide whether to accept this or whether to visit the site to assure themselves that the development is indeed completed.
Q58. If a planning authority issues a temporary stop notice, are there any adverse potential effects or costs associated with this for the planning authority?
A58. There is no right of appeal and only very limited grounds for claiming compensation. The grounds for claiming compensation are that the planning authority had already given planning permission for the activity the temporary stop notice prohibited, that the activity was covered by a certificate of lawful use or development ( CLUD), or that the planning authority withdrew the notice before it expired. In other words compensation would only be paid if the planning authority made a serious mistake.
« Previous | Contents | Next »