A guide to Planning Enforcement in Carmarthenshire

Upon receiving a service request with supporting evidence the Authority will:

• Register the complaint in the Council’s Enforcement System
• Check that we have all the necessary information to investigate the service request and, if not, make further contact with the complainant
• Prioritise complaints based on the ‘Prioritisation Scheme’.
• Acknowledge service request in writing within 5 working days from receipt (by email), providing:-
  • The Enforcement Case reference number
  • The name and contact details of the investigating Enforcement Officer
  • The Priority assigned to the case
  • Details of this Enforcement Charter

 

SERVICE TARGET 1: Service request are registered and acknowledged within 5 working days of receipt – Target 100%.

 

Following registration and acknowledgement of a service request we will: -

• Undertake any relevant initial research (a ‘desktop study’) which may assist in identifying whether the complaint constitutes unauthorised ‘development’ (as defined under Section 55 of the Planning Act 1990 (as amended));
• Determine whether a site visit is necessary visit to gather information and evidence relating to the alleged breach of planning control. Where this is the case, the officer may take photographs from the site or adjoining land;
• Depending on the seriousness of the alleged breach and available resources the target time for our initial investigation will be as follows:
  • Priority 1: Serious service request, including demolition in conservation areas, works to TPO trees, works to listed buildings. We will visit within 3 working days.
  • Priority 2: All other service request, such as extensions to buildings and unauthorised changes in the use of a building. We will visit within 10 working days.
  • Priority 3: Minor service request where planning rules may not have been kept to, such as minor alterations to the outside of a building, or other minor developments such as satellite dishes, advertisements, walls, gates and fences. We will visit within 15 working days.
• Where contact with either the complainant or the person who has carried out development without planning permission is necessary, officers will seek to contact the complainant / owner / developer by phone, letter or visit. Officers will utilise access powers where necessary.
• Where relevant, contact the alleged offender to discuss the allegations and seek any relevant information relating to the alleged breach of control to inform the investigation.
• If adequate information is unavailable, undertake further site visits if necessary to gain further information and/or evidence, or contact a complainant to assist in the collation of any necessary evidence (for example to record activities where an alleged breach relates to a business activity from a residential property)
• Following the site inspection, undertake any necessary further research into the planning history or other relevant sources, for example ownership details, aerial photography and records from other Council services such as Building Control and Council Tax. Officers may also serve a Planning Contravention Notice (PCN) which requires person(s) to provide information pertaining to the alleged breach.
• In accordance with the Welsh Government’s ‘Planning Performance Framework’ reach one of the following formal conclusions on the ‘investigation stage’:

A. That there has not been a Breach of Planning Control;

B. That there has been a Breach, but it would not be expedient to pursue further action in the public interest ;

Even where a breach has been identified, it may not be expedient to take action against a development that Officer’s consider to be acceptable, when assessed against policy and guidance and to not cause any harmful impact upon public amenity.

C. That a breach has occurred, and action is expedient
This could be either through the submission of a planning application to regularise development with conditions, potential use of a breach of condition notice or the service of an Enforcement Warning Notice (EWN);

D. That a valid planning application has been received in respect of the development in question

Where it appears to officers that there is a reasonable prospect that planning permission would be granted for the development, the planning enforcement team will encourage submission of a retrospective planning application. The person will also be advised to cease any work or use until permission has been granted.

• Notify the complainant(s) in writing of the outcome of the investigation phase, including information on the next stages of the investigation where relevant.
• Where relevant, notify the owner / developer of the conclusions of the investigation phase, including details of the next stage of the investigation where a breach of planning has been identified and it is expedient to pursue the matter further.

 

SERVICE TARGET 2: Enforcement cases complainants are notified in writing of the outcome of the ‘Investigation Phase’ within 12 weeks (84 days) of receipt – Target 80%

The remaining 20% will be presumed to be ‘ongoing investigations’ who will be notified of the position on the case and some advisory timeframe provided.

 

Where Officers have decided that a breach has occurred and it is (or would be) expedient to take action, the Council will then seek to resolve the breach through one of the following ‘positive actions’: 

A. Removal of the breach through informal negotiation

The purpose of the enforcement system is not to punish an offender, but to remedy a breach of planning in the wider public interest. Officers will therefore usually seek, wherever possible, to informally negotiate a solution to a breach of planning control. In considering this, it is important to bear in mind that it is unlawful to carry out development but not an offence without first obtaining any planning permission
required for it. In line with guidance in Planning Policy Wales (PPW), the Local Planning Authority should first attempt to resolve breaches of planning control informally through negotiation with the land owner, occupier or developer.
Formal action by the Council will be used where it is an appropriate and proportionate response or used in situations where an immediate solution is necessary in the interests of public amenity.

B. Serve Notice in respect of the Alleged Breach

Where a breach is found which is considered to be a high priority due to its harmful effect upon public amenity, and negotiation has been unable to remedy such harm, authorisation will be sought to take formal enforcement action through service of an Enforcement Notice or other appropriate Notice.
In line with PPW, enforcement action taken by the council will always be commensurate with the breach of planning control to which it relates. In addition, the council will only take action where it is appropriate to do so – for example, it would normally be inappropriate to take formal enforcement action against a trivial or technical breach of planning control.

Where formal action is to be taken against small businesses and self-employed persons, such action will in normal circumstances only be taken once informal discussions have been unable to remedy the breach. When setting periods for compliance with formal Notices, the Council will seek to be reasonable having regard to individual circumstances, weighed against the harm to the public interest.

In all cases of formal enforcement action, careful consideration will be made of the impact on the human rights of affected parties.

The most appropriate Notice will be used to remedy the harm being caused. Where authorised, this could take one of the following forms:

• Enforcement Notice (Operational Development or Material Change of Use)
• Stop Notice (including Temporary Stop Notice)
• Section 215 Notice (‘Amenity Notice’)
• Breach of Condition Notice
• Listed Building Enforcement Notice
• Injunctions

See below for more detail of the enforcement powers for the Local Planning Authority.

Details of Enforcement Notices, Breach of Condition Notices, Temporary Stop Notices and Stop Notices are entered into an Enforcement Register. The Register is available upon request.

C. Planning permission is subsequently granted through an application (or following an appeal against service of an Enforcement Notice)

D. By Taking Prosecution Action (e.g. against unauthorised display of an advertisement, or Unauthorised Works to a Listed Building)

Please note that in a small number of cases a complainant may be asked to assist the Council by providing evidence at an appeal or in Court. Before this happens the Case Officer will ask for their consent. If they are unwilling to give consent it is possible that the Authority would be unable to take further action.

Prosecutions for not complying with the notice does not compel compliance, but rather punishes non-compliance. Where there has been financial gain as a result of a criminal act of not complying with an extant notice, the Council will consider taking further action under the terms of the Proceeds of Crime Act 2002 (“POCA”).

E. By the Authority taking Direct Action to remove the breach of control

Although the costs of ‘direct action’ can be placed as a charge on land, it is often difficult to recover such costs. Therefore any decision to take such action will always be a final resort, and will have regard to the costs involved weighed against the degree of ongoing harm.

SERVICE TARGET 3: ‘Positive Action’ (as defined above) is taken on cases where action has been deemed expedient within 180 days of the ‘investigation date’. Target 80%. Where such action has not been possible, the complainant will be notified in writing of the reasons for any delay in taking action.

For positive actions (A) (C) and (E) above, the case will be formally closed and the complainant notified in writing.

For all other cases, the Breach of Planning will only be resolved once any formal Notice has been complied with through removal of the breach or, for example, an unauthorised advertisement has been removed.

Unfortunately, the timescale for ‘final resolution’ of such cases can take a considerable amount of time, and is often dependent on factors outside the control of the Authority, such as the time taken for determination of an appeal and subsequent compliance periods. It can also need the Authority to take Prosecution Action against an offence. For this reason, the Welsh Government indicators for enforcement no longer set ‘target dates’ for closure of enforcement cases. The Authority will, however, always seek to ensure final resolution of enforcement cases at the earliest opportunity and will pursue all appropriate and reasonable action to secure resolution. The complainant will be notified of the progress every 3 months where the cases are of longer duration.

The Authority will also always notify a complainant in writing once the enforcement case has been resolved / closed.

SERVICE TARGET 4: Complainants are notified in writing within 5 working days of a decision being made to close an enforcement investigation – Target 100%.