A guide to Planning Enforcement in Carmarthenshire

APPENDIX 1 : The Enforcement Powers

The Town and Country Planning Act 1990 defines taking formal "enforcement action" as the issue of an Enforcement Notice or the service of a Breach of Condition Notice. Failure to comply with either constitutes an offence.

There are also a number of supplementary powers granted to the Local Planning Authority (LPA) that allow other types of notice to be served. Failure to comply with these notices is also an offence.

A summary of the main enforcement powers available to the Local Planning Authority are detailed below:

 

1. Planning Contravention Notice (PCN)

A Planning Contravention Notice can be served in respect of any suspected breach of planning, and enables the Authority to require detailed information to inform its investigation, including: -

• details of all operations being carried out on the land which might be suspected as being a breach of planning control;
• matters relating to the conditions or limitations subject to which any planning permission has been granted;
• names and addresses of any person known to use the land for any purpose; and
• the nature of any legal interest in the land and the names and addresses of any other person known to have an interest.

The service of a PCN does not stop the Authority taking other formal action against a breach of planning control.

The recipient of a PCN has 21 days to respond to it. Failure to reply to a PCN (or making a false or misleading statement within a response) is an offence against which prosecution action can be taken.

 

2. Enforcement Warning Notice (EWN)

Introduced in Wales by the Planning (Wales) Act 2015, an Enforcement Warning Notice can be issued by a LPA where the Authority considers that, subject to the imposition of conditions, there is a reasonable prospect that, if an application for planning permission in respect of the unauthorised development were made, planning permission would be granted.

An EWN will give a specified period within which time an application must be made, after which time enforcement action may otherwise be pursued.
The issue of an Enforcement Warning Notice will ‘stop the clock’ in terms of the unauthorised development potentially gaining immunity from enforcement action.

 

3. Enforcement Notice (EN)

Where the LPA determines that it is expedient to take formal enforcement action against a breach of planning in the wider public interest, it may issue an Enforcement Notice.

An Enforcement Notice may allege an unauthorised material change of use of land or buildings, operational development or breach of a condition.

The Enforcement Notice must specify the time at which it takes effect, what steps must be undertaken to remedy the breach and a time period in which those steps must be undertaken.

An appeal against an Enforcement Notice (which can be made on planning or legal grounds) must be made before the date on which the Notice takes effect (normally within 28 days of service). If an appeal is made, the requirements of the Notice are suspended until the appeal has been decided.

Once a Notice comes into effect, there is a further period of time to allow for compliance. The length of time depends on the nature of the breach.
Failure to comply with an Enforcement Notice is a criminal offence and can lead to a fine of up to £20,000.

 

4. Listed Building Enforcement Notice

Similar to an Enforcement Notice, such Notice relates to unauthorised works to a Listed Building and may:-

(a) require the building to be brought back to its former state; or
(b) if that is not reasonably practicable or desirable, require other works specified in the Notice to alleviate the effects of the unauthorised works; or
(c) require the building to be brought into the state it would have been in if the terms of any listed building consent had been observed.

The Notice must specify time constraints for securing compliance with the requirements of the Notice.

There is a right of appeal against a Listed Building Enforcement Notice. The procedures are similar to those for an appeal against an Enforcement Notice.

If works subject to a Listed Building Enforcement Notice are later authorised by a retrospective application for Listed Building consent, the Listed Building Enforcement Notice will cease to have any effect although the liability to prosecution for an offence committed before the date of any retrospective consent remains.

 

5. Breach of Condition Notices (BCN)

A BCN may be served where a condition attached to a planning permission is not being complied with. The BCN will specify the steps which the LPA require to be taken in order to secure compliance with the condition as is specified in the notice.

There is no right of appeal against a BCN (although the Authority's decision to issue a Breach of Condition Notice can be challenged in the Courts) and failure to comply constitutes a criminal offence which can be prosecuted, which can lead to a significant fine.

 

6. Stop Notices (SN)

In certain cases, a Stop Notice can be served in order to cease an unauthorised activity on the land. A Stop Notice can only be served at the same time as, or after, the service of an Enforcement Notice, and is usually restricted to the most urgent and harmful breaches of planning control, with a LPA at risk of compensation if it is used in inappropriate cases.

There is no right of appeal against a Stop Notice, only the Enforcement Notice to which it is attached.

Failure to comply with a Stop Notice can lead to a substantial fine of up to £20,000.

 

7. Temporary Stop Notice

Since June 20155 LPAs in Wales have been able to issue Temporary Stop Notices which can require that an activity which is a breach of planning control should stop immediately.

5 Planning and Compulsory Purchase Act 2004 (Commencement No. 14 and Saving) Order 2015.

A Temporary Stop Notice does not have to be issued with an Enforcement Notice, and ceases to have effect after 28 days. Such Notice should only be issued when the LPA believes that the breach should be stopped immediately.

 

8. Section 215 ‘Amenity’ Notices (s215)

Where the condition of land is adversely affecting the amenity of the area, the LPA may serve a notice under s215 of the Town and Country Planning Act 1990 requiring the proper maintenance of land.

Section 215 will be considered where untidy land is affecting 5 or more properties in that area. Where a property is found to be in disrepair, the Authority will seek to find an alternative option such as liaising with the owners to bring the home back into use.

The s215 Notice will specify the steps that the LPA require to be taken in order to remedy the condition of the land.

There is a right of appeal to the Planning Inspectorate against a s215 Notice. Failure to comply with a s215 Notice is an offence

 

9. Injunction

If an authority considers that a breach of planning control is sufficiently serious, and is causing or likely to cause exceptional harm, it may apply to the Courts for a restraint injunction. Those in breach of an injunction can be imprisoned.

 

10. Prosecution Action

As referred to above, where someone is in breach of the requirements of an Enforcement Notice, Breach of Condition Notice, or a Stop Notice, they are guilty of an offence and the planning enforcement service can initiate prosecution proceedings.

In addition, the LPA may also instigate prosecution proceedings against offences such as:-

• Display of Advertisement without Express Consent
• Unauthorised Works to Protected Trees
• Unauthorised Works to a Listed Building
• Non-Compliance with a PCN or s215 Notice

Prosecution action will always be dependent on legal advice that there is a reasonable prospect of success, and that it is in the public interest to pursue such action.

In some cases, it may be determined that a ‘Simple Caution’ can be issued, where there is evidence of an offence, the offender has admitted the offence, and mitigation is taken into account having regard to the public interest test.

 

11. Direct Action

The Authority can also enter the site and carry out the works required by the Notice in default and then seek to recover its costs from the owner/occupier.

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