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There are several ways an investigation can evolve. Some can be resolved very quickly, while others may go on for many months or even years. Some investigations may evolve over time and different actions be required. The process is made up of two phases (see investigation process flow, for an overview of the process).
Phase one, initial investigation
Investigate and try and resolve the issue through informal means. This phase will also determine at an early stage where something is not a breach ('permitted development') or where a breach is minor or insignificant.
The council will look to reach a conclusion on what action is needed. The aim is to get to a point where the case can be closed or that there is a good idea of what action is required. This could include:
no breach: the development is not 'development' or is 'permitted development'
minor: there is a breach, but the low level of planning harm is such that further action is not necessary
detailed investigation needed: it may be that a lot more information is needed to be collected before a decision can be made
The aim is to make the first decision for priority 1 cases within five working days of visit, for priority 2 within 10 working days of visit, and for priority 3 within 15 working days of visit. All stakeholders will be informed of the first decision as quickly as possible.
This applies to situations where the investigation has determined that there is a breach of planning control, and that enforcement action is required to resolve the issue. This includes inviting a planning application (in situations where permission is likely to be granted) or action is needed to remove the breach or cease the activity.
In these cases, there will be a need to give the persons involved time to prepare a planning application or to remove or cease the development. If a planning application is submitted, then further time is needed to allow this to proceed through the usual process to a decision.
Possible outcomes
There are several possible outcomes at this stage of the process, depending on the circumstances.
negotiated remedy: the developer agrees to cease the breach. However, we will not allow negotiations to unduly hamper or delay formal action where it may be required to make the development more acceptable in planning terms or compel it to cease.
retrospective planning application: an application would be invited where there is a reasonable prospect of planning permission being granted (although this outcome cannot be assumed). The council will pursue submission where there is a need to impose conditions on a permission to restrict the development or modifications to the development may be considered acceptable. It must be noted however that anyone has the right to submit a retrospective planning application, regardless of the likelihood of planning permission being granted.
no breach: this would be where, for example, the matter is 'permitted development' or outside of planning control.
the breach is not expedient to pursue: this would be where there is, perhaps, a trivial or technical breach of control only which causes no material harm or adverse impact on the amenity of the site or its surroundings, or where the development is acceptable on its planning merits and enforcement action would solely be to regularise the development. For example, if a household development is slightly larger than what would have been allowed under 'permitted development', where in the absence of harm to public amenity, enforcement action would be disproportionate.
the development is immune from enforcement action: the statutory time limits for enforcement action are set out below. The council is unable to take formal action if the time has expired.
Phase two, formal action
This will be taken when someone has been given an opportunity to act at the initial informal action stage, but it has failed to achieve a positive outcome and resolve the matter. This is where the council will consider the use of formal enforcement powers.
At this stage the council will consider if the use of its formal planning enforcement powers is required.
It may be that someone has failed to submit a planning application within a reasonable time of being invited, or that planning permission has been refused. It may also be that someone has failed to remove unacceptable unauthorised development or cease an unauthorised activity within an agreed timeframe.
The council will consider if it is expedient to take formal action given the circumstances at that time. It has a range of formal powers, the nature of the breach will determine which are used.
The most commonly used formal powers are:
Warning Notice: formal notice setting out that there is a breach of planning, but at this time the council will not take any further action
Breach of Condition Notice: requires compliance with specified conditions within a set timescale
Enforcement Notice: requires certain steps to be carried out to remedy matters, again within a set timescale. Can be served together with a Stop Notice (see below)
Untidy Land (S215) Notice: requires steps to be taken to secure the proper maintenance of land and buildings within a set timescale
Prosecution: in some circumstances the council can prosecute for a breach of planning control (for example, works to a listed building, damage or removal of a TPO tree)
Where enforcement action has been taken, the council will proactively monitor this situation to ensure that compliance is achieved and that the required actions are taken.
Secondary enforcement actions:
prosecution: refer the matter to court system
direct action: council enters on to the land and completes the work to ensure compliance
injunction: seek order of the court to compel compliance
continued secondary action: continue to use these powers repeatedly to ensure compliance
Where primary enforcement action has been taken and compliance is not achieved, the council will consider if further action is required to resolve the situation. This includes prosecution for non-compliance with a notice or taking direct action to remove a breach of planning control. This is often complex and time-consuming and can require significant resources.
What is expected
The council expects that people will take breaches of planning control seriously and will work to resolve them as quickly as possible. People in breach of planning control are expected to:
prioritise resolving the issue
proactively work to resolve the matter
keep officers updated on progress
engage agents and experts to assist them where necessary
Timeframes for compliance
Officers will work with land owners to assist people to achieve compliance. This may include giving people timeframes to achieve certain actions (for example, applying for planning permission or time to cease an activity or remove development).
The council will be reasonable in setting these timeframes and will consider the circumstances of persons involved. It is understood that circumstances can change and delays can occur, and so consideration will be given to allow extra time. Evidence should be provided to demonstrate that progress is being made.
Asking for more time
The council will consider extending timeframes for compliance where there has been a change is circumstances or where some progress has been made but a delay has occurred. The council will also consider if granting more time is likely to result in the breach being resolved.
Where more time is needed, people in breach of planning control are expected to clearly set out:
in writing why they need more time
how much time they require
reasons for the delay
evidence of the delay
evidence of what progress has been made
If the request for more time is not reasonable or some progress has clearly not been made, the council will consider progressing to the next stage in the enforcement process.
As a general guide the council will apply the following timeframes:
to submit a planning application (where invited to do so by the council): 28 days
to tidy land: 28 days
to remove an unauthorised structure: two months
to cease a commercial use: three months
to cease a residential use (including traveller, or gypsy site): six months
Where the breach is causing an adverse effect on amenity or creating a nuisance, these timeframes may be shorter. The council will also consider if there are special or personal circumstances that would require a longer period for compliance. The timeframes are a matter for the council to determine but the council will endeavour to ensure that enforcement action is consistent by taking a similar approach in similar circumstances.
Phase one, initial investigation
Stage 1, complaint received, steps taken:
validated, prioritised, and acknowledged
investigated
first decision made:
no breach: no evidence, minor or inexpedient - no further action required
breach found: go to 'Stage 2, primary enforcement action needed'
