In Mid Suffolk the enforcement team
consists of 3 full time enforcement officers and a part time
administration support officer. They work closely with the Planning
Officers, Conservation Officers, Trees and Landscaping Officers,
Building Control Officers and the legal team.
The enforcement team’s purpose is to investigate and take
appropriate action to safeguard Mid Suffolk from unlawful
development. This means that they are responsible for controlling
unauthorised development, works and operations and ensuring
effective compliance with planning permissions, listed building and
other related consents and regulations, through an approach to
enforcement that is proportionate, targeted, consistent and
clear.
Topic list:
Principles of Good
Enforcement
Enforcement
Powers
The Local
Picture
The Process
The Task
The Future
The Council has signed up to the government’s concordat on the
principles of good enforcement practice as outlined below:
Standards:
To publish clear standards of service and performance through
the enforcement policy.
Openness: To provide information and advice in
plain language on the rules, and discuss problems with anyone
experiencing difficulties, either because of a breach of planning,
or as the result of an investigation. We will not normally make
personal details available, such as name, telephone number or
address, but our decision making processes will be transparent to
ensure confidence in the service.
Helpfulness: To work with all parties to
resolve investigations without formal action wherever possible. We
will be courteous and make sure that contact details of all
involved in an investigation are readily available and explain our
actions and any rights of appeal.
Consistency: To carry out duties in a fair,
just and consistent manner. However, this does not mean simple
uniformity, as this would ultimately detract from the variety and
character of different areas within Mid Suffolk. When deciding the
appropriateness of enforcement action the enforcement team takes
into consideration national policies and objectives plus those
specified in the local plan as well as considerations specific to
the site and it’s location. Enforcement officers will strive for
high standards of consistency and professionalism.
Proportionality: To take action, when
necessary, relative to the risk posed, the seriousness of the
breach and any perceived loss of amenity. Because of resource
limitations, likely effectiveness is taken into consideration along
with the degree of harm to amenity or the environment. Neither the
source of the complaint nor the degree of vociferousness of the
complainant are relevant factors but anonymous complaints are
likely to receive a lower priority.
Strategy:Whilst the Council has the discretion
to take enforcement action when it regards it as expedient, its
officers will also be guided by the following considerations that
are set out in Planning Policy Guidance Note 18:
The Council has the primary responsibility for taking whatever
enforcement action is necessary in the public interest.
The Local Government Ombudsman may find "maladministration" if
the Council fails to take effective enforcement action, which is
plainly necessary, within a reasonable timescale.
In considering any enforcement action under the Planning Acts,
the decisive issue should be whether the breach of control would
unacceptably affect public amenity or the existing use of land and
buildings meriting protection in the public interest.
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 trivial or
technical breaches of control which cause no harm to the amenity in
the locality of the site.
The local planning authority
will normally make an initial attempt to seek a negotiated solution
by persuading the owner or occupier of the site to make an
application and/or cease work. However, negotiations will not 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.
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There are several tools available to the Council to deal with
breaches of planning control under the Town & Country Planning
Acts. Those principally used are:
Requisition for
information – often served to gather
information on ownership of land or buildings prior to serving one
of the notices listed below.
Planning Contravention
Notice – can be served where it appears that
there may have been a breach of planning control and the Council
requires information about activities on the land, or nature of the
occupier’s interest in the land. This is the main formal method for
the Council to obtain information on a suspected unauthorised
development. It is an offence to fail to comply with the
requirements of the notice within the period set for its return, or
to make false or misleading statements in reply. Similarly, a
Section 330 Notice (of the Town & Country Planning Act 1990)
may be used to gain information, usually at the early stages of an
enforcement investigation. An offence is also committed in the
event of non compliance with the requirements of the Notice within
the specified period or the return of false or misleading
statements. A further similar instrument is a Notice served under
Section 16 of the Local Government (Miscellaneous Provisions) Act
1976. Failure to comply with the requirements of this notice within
the specified timescale (or provide false or misleading
information) also constitutes an offence.
Breach of Condition
Notice – can be served where there is a failure to
comply with any condition or limitation imposed on the grant of
planning permission. If the offender fails to comply with this
notice then we can take legal action through the courts. It can
only be used to secure complete compliance. It does not apply to
breaches of control related to listed buildings, advertisements or
protected trees. There are no rights of appeal to the Secretary of
State against a Breach of Condition Notice. It is a criminal
offence to fail to comply with a Breach of condition Notice within
the specified period for compliance.
Stop
Notice – These can be served with an enforcement
Notice, or after an Enforcement Notice has been served if it is
considered that continuing unauthorised development is causing
irreparable and immediate significant harm. The Stop Notice
continues to take effect even if an appeal is lodged against the
Enforcement Notice. The Stop Notice will normally take effect 3
days after it is served, though this period can be reduced if
necessary. Work must stop immediately the Notice comes into effect.
There are compensation liabilities if the Enforcement Notice is
quashed, but these are not related to the planning merits of the
case. There is no right of appeal and failure to comply with the
notice is an offence.
Temporary
Stop Notice – These can be served when it is
considered there has been a breach of planning control, and it is
necessary to stop the activity or development in question
immediately to safeguard the amenity of the area. This differs from
the normal Stop Notice powers as it is immediately effective and
does not have to be accompanied by an Enforcement Notice. There is
no right of appeal to the Secretary of State, though a judicial
review could challenge the validity and propriety of the
decision.
Section 215
Notice – These may be served in relation to untidy
land or buildings, when the condition of the land or buildings is
deemed to negatively affect the amenity of the area. This requires
the owners and occupiers of the land to take specific steps to
secure an improvement in its appearance. Appeal to a magistrates
court is available if the recipient considers the serving of the
notice to be unjustified. Failure to comply with the notice is an
offence. The Council also has the option of direct action – i.e.
contracting to have the necessary work undertaken and then charging
the owner of the land. In such a case the Council would take a
charge over the land to secure its interests
Enforcement Notice –
This will be served when a breach of planning control has occurred
and the Council considers it appropriate to take action. The
recipient must take the steps specified, within a set time period.
Failure to comply with a notice constitutes a criminal offence. The
recipient has the right of appeal to the Secretary of State through
the Planning Inspectorate. An appeal suspends the effect of the
notice until it is determined. Neighbours and other interested
parties have the opportunity to make representations prior to the
Inspector’s determination. Any representations are available for
public inspection.
Injunction - The Council may
apply to the County Court or High Court for an injunction to stop
an actual or imminent breach of planning or listed building
control, even when the identity of the person concerned is unknown.
An injunction can be sought whether or not other enforcement action
has been taken. Failure to comply with an injunction can lead to an
unlimited fine and/or imprisonment.
Prosecution – The Council can
initiate Court proceedings where a formal Notice has been breached.
Additionally, legal proceedings may be commenced for unauthorised
works without the necessity of serving any formal Notices. For
example, unauthorised works to a listed building or a protected
tree, or an unauthorised advertisement. The Council may also issue
a formal caution. This is a formal process where the offence is
admitted. This may then be referred to at the sentencing stage of
court proceedings if ever found guilty of a subsequent offence.
Prosecution will normally only be considered if two ‘tests’ can be
met. The first is The Evidential Test – there must be sufficient,
admissible and reliable evidence that an offence has been committed
and that there is a reasonable prospect of conviction. The second
is the Public Interest Test – a prosecution will only be brought if
it is considered to be in the public interest.
Direct
Action – The Council has the power, in special
circumstances and as a last resort, to make sure an enforcement
action is complied with by carrying out the required steps itself
in default of owner or occupier’s action. In such cases all costs
incurred can be recovered from the owner. Where immediate recovery
of costs is not possible, a charge on the property may be
registered with the Land Registry, thus ensuring full cost recovery
plus base rate interest.
Article 4
Direction – The Council has powers to restrict/remove
individual permitted development rights using this legislation.
In addition to the powers listed above, the Council has certain
powers under Planning (Listed Building & Conservation Areas Act
1990, the Clean Neighbourhoods & Environment Act 2005 and the
Anti-Social Behaviour Act 2003 which may be delegated to the
planning enforcement team. These latter may be particularly used in
relation to the removal of advertisements and fly posters.
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The Mid Suffolk planning enforcement team receives almost 500
complaints a year. Approximately three quarters of these are
divided between alleged ‘unauthorised operational development’ and
alleged failure to comply with conditions pertaining to a planning
permission. The majority of the remaining 25% of complaints are
regarding unauthorised works to listed buildings with a smattering
of complaints relating to unauthorised advertisements, damage to
protected trees and various protected animal species.
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After acceptance of a referral/complaint, current procedures
include an internal investigation of the planning history of the
site to establish, amongst other things, whether there is a
relevant planning permission in force. In most cases this will be
followed up by a site visit to assess the situation ‘on the
ground’. This part of the investigation may involve the taking of
photographs and measurements and probably a discussion with anyone
on site.
Once a breach of planning control has been established (a number
of cases can be closed at this stage as not being in breach), then
every effort is made to resolve the situation without recourse to
formal action. This usually takes the form of building a
co-operative relationship with the ‘offender’ within which he or
she can be persuade to make the necessary changes required for
compliance. This may be to comply with a condition, undo some
unauthorised development, or possibly submit a retrospective
application. This is one of several points at which the
complainant(s) may be advised of progress.
Only when all other avenues have been exhausted will formal
action be considered. (The only exception to this is when the harm
is deemed to be considerable, or damage irreversible and requiring
immediate action.) Further action may involve one or more of the
enforcement powers listed above. It should be noted, however, that
the local planning authority has discretionary powers over taking
action and sometimes a proportionate response may dictate that a
case is not pursued as a matter of expediency, even though,
technically, a breach may have occurred.
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The Task
of the enforcement officer is to constantly perform a balancing
act. What may be important to the service user may be less
significant to the service provider. There is, for example, an
ongoing problem of ensuring customer satisfaction when their issue,
perceived by them as highly significant, does not rate as very
important on the scale of priorities. i.e. evaluating harm
objectively against the subjective perception of that harm.
The enforcement team must possess excellent communication
skills. Officers are required to deal evenhandedly with unrealistic
expectations from both complainant and offender, both of whom may
be viewed as ‘the customer’. He or she has to make unpopular
decisions and explain these to both complainant and offender,
either (or both) of whom may be hostile and aggressive. The
enforcement officer must also maintain an awareness of the Human
Rights Act and its implications, when acting in an authoritative
role with potentially serious consequences.
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The
Future
Because of some failure of meeting expected performance
standards within the enforcement team, a process of systems and
process evaluation (Vanguard) has begun with a view to improving
working practices and ultimately, performance. This process has to
date produced a formula for the prioritisation of cases which takes
into account a whole range of factors. This re-evaluation is
expected to produce a documented system of enforcement working
practices, service standards and anticipated outcomes, from which
the team can work more consistently.
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