Biggart Baillie Solicitors

Enforcement - Cinderella No More

Wednesday, October 07, 2009

by Murray Shaw

Significant changes (see below) were made in the 2006 Planning Act in relation to the enforcement regime.  These changes are welcome.  Many people only interface with the planning system at a time when they see a development taking place which is not carried out or completed in conformity with what they understood to have been approved and react accordingly.  This is often so where the development is not of any particular significance but a more local one affecting their immediate environment.  Indeed it is often the small “neighbour” developments which cause the most anguish.  Assuming these concerns are in fact real any failure by local authorities to take enforcement action when it is justified is likely to result in a lack of confidence with the planning system as an entirety. 

Planning etc. (Scotland) Act 2006 – Changes to Enforcement

While many local authorities act in seeking to enforce planning permissions (and a number have enforcement officers who are not unusually ex-Policemen) it is probably fair to say that the commitment to this aspect of the planning system is often less than the commitment to others, resulting in a lack of confidence with the system generally. 

In the 2006 Act there were a number of significant changes to the enforcement regime including the following:-

1. Local authorities were required to put in place an enforcement charter setting out their policies for taking enforcement action which are to be kept up to date;
2. Local authorities were given a power to issue a notice (under Section 33(a) of the Act) requiring an owner or occupier to submit a retrospective planning application (relevant when there is a breach but one which the local authority felt could be rectified by a grant of planning permission);
3. A power given to local authorities to issue temporary stop notices;
4. While not uncontroversial, fixed penalty notices were brought into existence, in effect levying a “civil fine” in relation to breaches of the planning regime as an alternative to prosecution.;
5. The possibility of obtaining a grant of planning permission in the context of an appeal against the enforcement notice was removed.

Circular 10/2009

These were significant and welcome changes.  Now as a part of a series of Circulars which have been produced by the Scottish Government to reinforce the changes to the planning regime a Circular has been brought out dealing solely with “planning enforcement” (Circular 10/2009).  This is a Circular which deals with both the principle and detail of the enforcement regime and sets out with considerable clarity the powers available to the local authorities, highlighting how these can and should be considered on a hierarchal and proportionate basis. 

The Circular makes clear that ultimately planning authorities have a discretion to take enforcement action but they have to exercise that discretion in the context of the Development Plan, any other material considerations and of course their charter.  Critically, the Circular notes:- “The integrity of the development management process depends upon the planning authority’s readiness to take effective enforcement action where necessary.  Public respect for the development management system is 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 the breach.”. 

This is clear indication from the Scottish Government of the importance they expect local authorities to place on enforcement action.  While the guidance notes that in some cases it may be possible to negotiate a solution to resolve matters, negotiations “should not be allowed to hamper or delay whatever form of enforcement action may be required to make the development accepted on planning grounds or to compel it to stop”.  The Circular also highlights the time limits for taking enforcement action.

Enforcement Options

Thereafter the Circular sets out the options available to Councils which are clearly set out on the basis that they form a natural hierarchy.

Accordingly the first option for a Council even where development has been carried out without permission is to consider issuing a notice under Section 33(a) requiring the applicant to make an application for planning permission.  This is appropriate where the non-consented development may be acceptable or may be made acceptable by conditions attached to a planning permission.  If the recipient of a notice chooses to ignore it then enforcement action may be necessary.  That recipient will no longer be able to seek the grant of planning permission by means of an appeal against the enforcement notice (previously one of the grounds of appeal was that planning permission should be granted for unauthorised development).  If, of course, enforcement action falls to be considered the local authority would need to consider whether it was appropriate for it to exercise the discretion to take enforcement action having regard to the considerations referred to above. 

The Circular also identifies the possibility (which will probably be fairly rare in practise) that unauthorised development on one site may be unacceptable but that development might be acceptable on another site with some form of relocation.  In those circumstances an enforcement notice might well be issued with a time limit on compliance which is intended to allow the possibility of relocation. 

Assuming this option is not available and enforcement action is then necessary the Circular deals with the practicalities of enforcement and encourages the planning department of the local authority to liaise closely with the legal or solicitors department.  The Circular also encourages planning authorities to carry out a review of their procedural arrangements to make sure that they can respond quickly and where appropriate outwith normal working hours.  The Circular notes that when complaints are made about alleged breaches of planning control “they should always be properly recorded and investigated.  If the planning authority decides 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.”.

While the Circular notes the need to take enforcement action in the appropriate circumstances, it does highlight that breaches are not always deliberate.  They may result when a business owner has carried out development in good faith believing that no planning permission is needed or where a private individual has been unaware or misunderstood what permitted development can be carried out.  In relation to small businesses the Circular encourages planning authorities to give careful consideration as to how to proceed as enforcement action “may represent a substantial financial burden on the small business”.  The Circular therefore suggests that local authorities should consider how to apply the hierarchy highlighted above with a view to trying to resolve matters.  If enforcement action is to take place then local authorities are encouraged to allow sensible time limits for compliance with any notice with a view to minimising disruption to the business.  In relation to householders the Circular encourages planning authorities not to take enforcement action if the development complained of is only slightly in excessive of that which might otherwise have been permitted. 

Against the general background summarised above the Circular has a number of specific annexes dealing with various procedures available to Councils giving detailed information which will be of considerable assistance to those who need to take enforcement action and to a lesser extent to those who are the recipients of enforcement action.

This Circular is welcome as reinforcing the changes made in the Act.  The emphasis on the need for effective enforcement action to retain confidence in the planning systems is particularly welcome.