Information on what Planning Enforcement is, what is unauthorised development, how to make a planning enforcement complaint, what happens if someone complains about you, the discretionary powers, the Council's decision, formal enforcement actions, offences and the Enforcement Concordat.
Planning laws are designed to control the development and use of land and buildings in the public interest. Carrying out work or changing the use of land and buildings without planning permission could lead to inappropriate development that could cause harm in various ways. For example, it could adversely affect visual amenity, compromise highway safety or cause irreversible damage to the historic or natural environment.
Oadby and Wigston Borough Council work to protect the local environment and quality of life for people living in the borough by providing an effective planning service. Taking action to enforce planning rules, where unauthorised development is causing harm to an area, is an important part of this.
The Planning Enforcement Officer only deals with matters which relate to the Town and Country Planning legislation. They will not deal with neighbour disputes, investigations on land ownership or boundary disputes. If someone is carrying out works or activities which relate to regulations controlled by other sections of the Council, or external bodies, then details of the activities will be forwarded on to the relevant regulatory body where this is known. The Enforcement Officer also deals with untidy land issues and can issue section 215 notice which provides the power to secure proper maintenance of land and buildings. Further information on untidy land can be found on the Untidy Land Notices (Section 215 of the Town and Country Planning Act) page of the website.
What is unauthorised development?
Essentially, unauthorised development is when something has occurred without the relevant permission being first obtained (or the activity being carried out is not being done in accordance with the approved plans/specifications and/or planning condition attached to a permission). This could include the following (which is not a comprehensive list):-
- erection of a new building,
- alterations/extensions to an existing building,
- a change of use of land,
- the display of an advertisement,
- removing or lopping trees in a Conservation Area, or subject to a Tree Preservation Order,
- unauthorised works to a Listed Building,
- unauthorised demolition,
- stationing of a caravan or mobile home (not usually touring caravans stored at residential properties),
- breach of a planning condition attached to a permission,
- non-compliance with the requirements of a section 106 agreement,
- engineering operations, including the changing of land levels or
- failure to properly maintain land so that it affects the amenity of the area (untidy land).
Not all development requires planning permission as it may fall within what is known as ‘Permitted Development’ rights. Permitted Development is development which has been granted planning permission through what is known as a Development Order – usually the Town and Country Planning (General Permitted Development) Order 1995 (as amended). This Order has been amended numerous times since 1995 and it is therefore advised to check with the Local Planning Authority. Further information can be found on the Do I need planning permission? Pre-application advice page of the web site.
You may also apply for a Certificate of Lawful Development for works that have been completed or are proposed. Further details of Certificate of Lawful Development applications can be found on the Lawful Development Certificates page of the web site.
In many cases unauthorised development is accidental or comes about through a lack of knowledge of planning law. You should seek advice from a Planning Officer about the need for planning permission and the likelihood of permission being given, giving full details about the development. If you wish to seek permission against the advice given to you, then you are entitled to make an application for planning permission to attempt to retain the development.
However, it is always advisable to stop any unauthorised development until such time as the matter is resolved following investigation. If any retrospective application is refused permission then a formal Enforcement Notice will be served which will require the unacceptable development to cease if it is used or if it relates to a new or extended building those works to be demolished.
Enforcement Notices can cause problems for the owners of property. Apart from legal action by us it will usually cause serious problems if you want to sell the property. Enforcement notices are registered against the land and remain valid on the land even after they have been complied with. In the event of a sale of the property the Enforcement Notice is disclosed and can cause a serious delay. Enforcement Notices are only ended by a subsequent planning permission, by a successful appeal. It should be noted that enforcement action will only be taken if it is considered expedient to do so, and is often a last resort in most cases.
How to make a planning enforcement complaint
If the Development Control section is aware of any potential breach of planning control (either by this being noticed by Planning Officers, other Officers of the Council, or from an planning enforcement complaint from a member of the public) we will investigate the potential breach and consider what action, if any, is appropriate to take.
You can make a planning enforcement complaint by e-mailing firstname.lastname@example.org or in writing to us with the following information:-
- Premises/Exact Location – Where the alleged breach of Planning regulations is
- Owner – Owner of the site where the alleged breach is (if known)
- Occupier – Occupier of the site where the alleged breach is (if known)
- Complaint Received from – Your Name
- Address – Your Address
- Tel No – Your Telephone Number
- Enforcement Complaint – The Details of the alleged breach
The Enforcement Officer will establish if there is a breach of planning control, its severity and whether it is appropriate to take enforcement action. In the vast majority of cases we will try to reach an amicable agreement with the owner or occupier, rather than serving a formal Enforcement Notice. We may write to you to request further information and will ultimately inform you of the outcome of our investigations.
The Council will treat complaints in confidence so far as we are able. With regard to the Freedom of Information Act 2000 the identity of the complainant is not normally required to be released in response to any formal written request from a member of the public; however each case is considered on its own merits.
If a case proceeds to formal court action the council may need the evidence of a complainant to substantiate the case, as this evidence could be more thorough than anything the council may be able to obtain. If this is the case then the council would not be able to retain the anonymity of the complainant. The complainant will be made aware of this prior to that formal action taking place.
What happens if someone complains about you?
If you are contacted about an alleged breach of planning control you are entitled to know what the allegation is (but not who made it) and to have the opportunity to explain your side of the case. Initially the Enforcement Officer will visit the site which may be without any prior warning to the owner or any tenants/employees at the site. Section 196a of the 1990 Town and Country Planning Act (as amended) gives Officers the Local Planning Authority power to enter any land. Wilful obstruction of a person exercising a right of entry is an offence. Please note that admission to any building used as a dwelling house will not be demanded as of right by virtue of the above unless twenty-four hours’ notice of the intended entry has been given to the occupier of the building.
You may be served with a Planning Contravention Notice or a Requisition for Information Notice both of which requires information concerning the alleged development. These notices are used to establish the facts of what has occurred and the details of those with an interest in the land, so that the council can determine whether a breach has taken place and who is responsible.
If there is a breach, we will contact you to explain what the breach is and what needs to be done to resolve it. This may involve:-
- submitting a retrospective planning application,
- applying for a certificate of lawful use,
- negotiating an solution,
- removing an unauthorised structure or
- stopping an unauthorised activity.
You will be given reasonable time to comply with a request to resolve a breach, unless it is causing such harm that it is necessary to sort it out immediately.
If compliance is not secured through negotiations or a retrospective planning application is refused formal action may be instigated.
Enforcement action is a discretionary power
In order to take formal enforcement action the Local Planning Authority must decide whether it is ‘expedient’ to do so. If someone has done something which is a breach of planning control this is not, in itself, reason to take enforcement action. The Local Planning Authority will not therefore act to rectify all breaches of planning control.
The Expediency test is therefore whether the unauthorised activities are causing harm having regard to the Development Plan policies and other material planning considerations. This means that formal enforcement action is discretionary to the Local Planning Authority and all the relevant planning circumstances of each case must first be considered. Central Government advice is that ordinarily formal action should be a last resort and that councils are expected to give those responsible the chance to put matters right before serving a formal notice. However, when the breach of planning control is causing unacceptable serious harm or nuisance to public amenity formal action will not be delayed by protracted negotiation. Enforcement action will therefore always be commensurate with the seriousness of the breach of planning control.
What can the local planning authority's decision be on the complaint?
There are five potential outcomes to a Planning Enforcement complaint: -
- No breach of planning control has been established,
- Breach of planning control has been established but it is not expedient to pursue the matter,
- Breach of planning control has been established and an invitation is made to submit a retrospective application for formal consideration,
- Breach of planning control has been established and attempts are made to negotiate a solution or
- Formal Enforcement action is instigated.
Formal enforcement action
If the breach of planning control is so severe or if negotiation does not secure compliance with what the council considers acceptable then it has the power to take formal action against any breach. The nature of the breach will dictate what route the council chooses to pursue. Depending upon what action is taken the person responsible may get a criminal record.
It is ultimately the owner or persons responsible that may be required to remove a building work and/or cease an activity and remove from the site, at their own expense, and everything associated with the activity. In the event of non-compliance, the responsible persons are open to the risk of prosecution. The Council can also take direct action to undertake the appropriate works and recover the costs from the responsible person(s). Where there is a habitual breach of planning control the council can, as a last resort, compulsorily purchase the land so as to stop the activity.
The council has a range of formal powers under the Town and Country Planning Act that it can use to remedy breaches of planning control. Some of these are listed below. Additional powers exist to serve injunctions, to take direct action and to prosecute when it is deemed expedient to do so.
- Planning Contravention Notice – Section 171(c) provides the power to serve a notice requiring persons to divulge information in respect of land and activities.
- Breach of Condition Notice – Section 187(a) provides the power to serve a notice to secure compliance with conditions specified within a planning permission.
- Enforcement Notice – Section 172 provides the power to serve a notice which details the steps required to remedy the situation. This notice can also be served in conjunction with a stop notice.
- Stop Notice / Temporary Stop Notice – Section 183/171(e) provides power to serve a notice requiring unauthorised activities to cease.
- Section 215 Notice – Provides the power to secure the proper maintenance of land and buildings.
- Section 330 Notice – Requisition for information notice
Depending on the type of notice served, the person(s) who the notice has been served on may have the right of appeal against the notice. Further details of appeals can be found on the Planning (and associated) Application appeals page of the web site.
Offences under the Planning Acts are punishable at the Magistrates Court and/or Crown Court. Examples of such offences are:-
- failure to comply with the requirements of an enforcement notice or other notice issued under Parts 7 and 8 of the Town and Country Planning Act 1990 and the Planning and Compensation Act 1991,
- unauthorised works to a listed building,
- unauthorised works to a tree which is subject to a tree preservation order or located within a Conservation Area
- display of an advertisement without consent,
- the removal of hedgerows without consent or
- to give false or misleading information in response to statutory requisitions for information; to give false or misleading information in an application for a certificate of lawful use or established development.
The maximum fine upon conviction in some of the above offences is £20,000, and if convicted at the Crown Court can be an unlimited fine and/or a term of imprisonment.
In accordance with the Enforcement Concordat, we will carry of out Planning Enforcement in line with the following principles:-
- Proportionality – Any action that is taken will relate to the seriousness of any breach.
- Consistency – we will act in a similar way when faced with similar circumstances. The Council will also work with other councils and relevant agencies to ensure that consistency is maintained at a local and national level as far as possible.
- Transparency – We will try to help people understand what the law requires of them and make clear what needs to be done, and not done, to achieve compliance. We will also make clear what people should do if they are not happy about any action taken or a decision not to take action.
- Targeting – Our enforcement efforts will be directed against those whose activities pose the most serious risks or create the most damage to the public interest and those who have a history of non-compliance.
Last updated: Friday, 15 December 2017 11:51 am