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Review of Planning Enforcement - Research Findings

DescriptionThis research reviews the use of The Planning and Compensation Act 1991 which provided new and improved powers for the enforcement of planning control.
ISBN0 748 66105 0
Official Print Publication Date
Website Publication DateDecember 29, 1998
Development Department Research Programme Research Findings No 45 (1997)
Review of Planing Enforcement

School of Planning and Housing
Edinburgh College of Art/Heriot-Watt University and Brodies WS

ISBN 0-748-66105-0Publisher The Scottish OfficePrice £5.00
The Planning and Compensation Act 1991 provided new and improved powers for the enforcement of planning control. The powers were introduced on a staged basis in 1992. This research reviews the use of the new and improved planning enforcement powers introduced in the Act, by means of a survey of enforcement activity by planning authorities over the period 1992-1996. It makes recommendations for improving the effectiveness of planning enforcement through good practice, improved policy guidance, and legislative change.
Main findings
  • Despite widespread approval of the comprehensiveness of the new and revised powers, there is a reluctance to deploy some of them in practice.
  • Attitudes to effectiveness of the new and revised powers are very positive, but there are wide variations in their use in practice. In particular, there is a general reluctance to employ the sanctions of Stop Notice, interdict, and direct action, but where these are used they are often proving effective and speedy mechanisms for resolving breaches of planning control.
  • Resources for effective and efficient enforcement are a key concern, coupled with the increasing level of enforcement case work generated by dedicated enforcement staff. It appears that different approaches to administrative structures in different planning authorities, arising from local government reorganisation, are having mixed fortunes for the effectiveness of enforcement.
  • The wide range of enforcement powers introduced in 1992 is both a strength and a weakness for effective enforcement. It is a strength because of the range of powers available for use in a variety of situations; but it is a weakness because authorities can be frustrated in seeking the ultimate sanctions through the Criminal Courts where they have not exhausted all other relevant means of enforcement.
  • There is a need for a local policy framework within which to set enforcement action.
Aims of the Review
The purpose of the Review of Planning Enforcement was "to assess the extent to which these new and revised enforcement provisions of the Planning and Compensation Act 1991 have improved the ease and speed of carrying out the enforcement process". This was to be done by:
  • assessing the practical operation of the new and amended enforcement provisions contained in the 1991 Planning and Compensation Act;
  • identifying and evaluating any perceived shortcomings in the provisions or their use by planning authorities;
  • making recommendations on the options for improvements to be made, either through revision of the legislative framework or through policy guidance and best practice advice.
The Powers of Planning Enforcement
New and substantially improved powers to enforce planning control were given to planning authorities in the Planning and Compensation Act 1991. These provisions enhanced those contained in Part V of the Town and Country Planning (Scotland) Act 1972. These new powers are:
  • improved powers of entry on to the land
  • the power to serve a Planning Contravention Notice
  • amended powers to serve an Enforcement Notice
  • amended powers to serve a Stop Notice
  • the power to serve a Breach of Condition Notice
  • the ability of a planning authority to seek an Interdict
  • a new Certificate of Lawful Use or Development
  • revisions to the time limits on enforcement action
  • increased penalty provisions for enforcement offences
The Objectives of Planning Enforcement
A breach of planning control is defined in the Town and Country planning (Scotland) Act, as amended by the 1991 Planning and Compensation Act, as:
  • the carrying out of development without the required planning permission, or
  • failing to comply with any condition or limitation subject to which planning permission has been granted.
  • The basic purposes of planning enforcement can be summarised as being:
  • to remedy undesirable effects of unauthorised development.
  • to bring unauthorised activity under control to ensure that the credibility of the planning system is not undermined.
Methodology
The work was undertaken through a three stage study which included a postal questionnaire of all Islands, General and District Planning Authorities in early 1996, followed by detailed analysis of the enforcement process through 25 case studies. Case law, enforcement appeals and prosecution aspects were also reviewed.
Keystones of Effective Planning Enforcement
The research identified five keystones of effective planning enforcement:
  • The availability of a range of enforcement powers from which planning authorities can select in seeking to remedy particular types of breaches.
  • Effective resourcing and management of the enforcement process.
  • Effective organisational relationships within planning authorities, and between planning authorities, the prosecution service and the courts.
  • Ensuring that the requirements of planning enforcement are clearly communicated to all concerned.
  • Speedy and appropriate action, ensuring lasting outcomes.
Use of Planning Enforcement Powers
1. The Planning Contravention Notice
Planning authorities are empowered to serve a Planning Contravention Notice on the owner or occupier of the land in question, on a person with any other interest in the land, or on a person who is using the land, or carrying out operations on it. The Planning Contravention Notice may be served whenever a planning authority suspects that a breach of planning control has occurred.
The pattern of use of PCNs among planning authorities is striking. One planning authority had served no PCNs at all whilst, in the same region, another had served 156 since the power was introduced in 1992. Use of the PCN was very low by a number of planning authorities.
Most planning authorities continue to rely on other "tried and tested" methods such as negotiation and persuasion, and Notices under section 270 of the 1972 Act. In the face of this very low use of the PCN, 27 of the 30 planning authorities indicated that PCNs have improved information gathering about alleged breaches of planning control. Although the majority of PCNs issued were complied with (almost two thirds), a significant proportion (a fifth) required subsequent enforcement action.
The Planning Contravention Notice is generally regarded as an effective means of gathering the required information on alleged breaches of planning control, but there appears to be significant underuse of it by most planning authorities.
2. The Enforcement Notice
The improved provisions in the Enforcement Notice procedure were intended to allow for flexibility in its use, in particular to allow changes in the specification of the terms of the Notice after its service, and thereby to enable compliance to be speedy and effective. Previously, a Notice could not be varied, but had to be withdrawn and a new Notice served, adding to delay in resolving breaches of planning control.
Every respondent planning authority has served Enforcement Notices over the survey period, ranging from just two to over 400. For the three full years since the introduction of revisions to the Enforcement Notice, the trends in their use vary widely between planning authorities, with some showing discernible decreases in their use, and some showing increases. In general terms, however, the total number of Enforcement Notices issued has declined over the period under review.
Overall, there were mixed views about whether the revisions to the Enforcement Notice had made it more effective. Those who considered it had referred to greater flexibility in allowing authorities to vary the terms of the Notice.
3. Enforcement Notice Appeals
The number of Enforcement Notice appeals has increased over the period under review. Enforcement Notice appeals relating to unauthorised change of use represented by far the predominant type of development subject to appeal.
Just under half of Enforcement Notice appeals are determined after a Public Local Inquiry, with the balance determined by written submission procedure. A significant number were also subject to a previous planning application. The majority of Enforcement Notice appeals are dismissed (almost two thirds) There were very few cases where costs were awarded to either party, with an equally small number of cases where they were awarded to the planning authority, as opposed to the appellant.
The survey shows that the Enforcement Notice is still the main enforcement power used by planning authorities to resolve breaches of planning control. There is little evidence of the inflexibility associated with the former requirements of drafting and service. However, the major concern is that there is scope for delaying the effects of the Enforcement Notice, and thereby resolving a breach of planning control, by (a) the right of appeal against an Enforcement Notice, and (b) the right to have an appeal heard by Public Inquiry.
4. The Stop Notice
The powers to serve a Stop Notice were improved in 1992 by providing for it to be served at the same time as an Enforcement Notice. The Stop Notice is therefore a potentially powerful weapon in the armoury of planning enforcement powers.
The revised provisions also clarified the procedures, particularly in relation to compensation liability in the event of a successful appeal against an associated Enforcement Notice.
There is very low use of the Stop Notice power, with almost half of the planning authorities serving none at all over the survey period. Only two planning authorities made regular use of the Stop Notice provision, while 14 served no Stop Notices at all. The principal reason for this is that planning authorities are concerned that they may be liable for compensation in respect of loss or damage directly attributable to the Stop Notice if it subsequently falls for some reason.
5. The Breach of Condition Notice
The BCN was seen as being appropriate in cases of alleged breaches of condition because the developer has implicitly accepted the conditions by implementing the permission. In addition, it was anticipated that the issues would be clear cut, and that there was likely to be a need for urgent action.
Every planning authority apart from one has made use of this new provision. There were very wide variations in the use of the BCN, with half the respondents serving six or less BCNs over the period. Planning authorities are generally reluctant to use the Breach of Condition Notice, preferring the greater flexibility of the Enforcement Notice. The main reason for this stems from the wording of planning conditions on a planning permission which lack the specificity and clarity to be enforced through the Breach of Condition Notice.
6. Direct Action
Planning authorities have "default" powers to enter Enforcement Notice land and carry out the unfulfilled requirements of a Notice themselves. These powers enable a planning authority to carry out any steps required by an Enforcement Notice, including steps to discontinue a use of land, and steps for the purpose of making development comply with the terms of any planning permission granted in respect of the land, or to remove or alleviate any injury to amenity which has been caused by the development.
Eighteen of the 30 planning authorities did not make use of this power at all, with a further seven using it only once or twice over the period. Only two planning authorities appear to have used this power to any significant extent. Overall, there is a general reluctance, and at the very least a wariness, to take direct action to remedy a breach of planning control. This is due to concerns about recovery of costs of such action.
7. Interdict
A planning authority may seek to restrain or prevent any breach of planning control, whether actual or apprehended, by applying to the Court for an interdict. Less than half of the respondent planning authorities made use of this power. 90% of interdicts sought by planning authorities were granted.
Interdict is extremely effective where it is used but, like the Stop Notice and Direct Action, it is used very rarely. There is a general concern of planning authorities about the costs of using such powers, and this is undermining the intentions of the Act in improving the powers of planning authorities to resolve breaches of planning control through early and effective action via these measures.
8. Prosecution of Planning Offences
A total of 112 prosecutions were sought over the survey period. However, only four planning authorities pursued 10 or more prosecutions. Prosecutions proceeded by the Fiscal accounted for less than half of prosecutions sought, although patterns varied across local authorities. Six planning authorities had all their cases taken up by the Fiscal, including one which had all 9 requests proceeded. A further six planning authorities had at least half of their cases proceeded, while seven planning authorities were unsuccessful in having any of their cases proceeded.
Although the overall level of prosecution is low (only 55 cases proceeded with compared with 112 sought by planning authorities), this compares favourably with the 46 cases which were prosecuted successfully.
There is a general perception among planning authorities that prosecution is the ultimate sanction in planning enforcement, rather than the "last resort" after all other enforcement powers have been exhausted, or their use rejected as being inappropriate. In this, it appears that planning authorities are turning to the prosecution service prematurely, ie before they have made full and effective use of their own enforcement powers.
9. Organisation of Enforcement Work
Of the 30 planning authorities responding to the survey, 27 employ at least one full-time enforcement officer, and a number of these are new appointments since 1992. Only two authorities did not employ any enforcement staff
Most planning authorities do not normally report the use of PCNs, BCNs, prosecutions and use of right of entry powers to Committee, whilst most do normally report use of Enforcement Notices and Stop Notices, direct action and use of interdict. At least one planning authority had full delegated powers for all enforcement work, whilst three had no such powers at all.
Over half the planning authorities in the survey did not have policies, guidelines or procedural rules for planning enforcement, and none had enforcement policies set out in the Development Plan.
There is a general concern which emerges from the research about the low priority attached to planning enforcement work, relative to the other statutory functions of planning authorities.
Recommendations
The Review makes a number of recommendations arising from the research, a few of which would require legislative change for their implementation. Included in this category are:
  • The 1972 Act should be amended to provide that, once served, a Breach of Condition Notice applies permanently to the land.
  • There should be a new power to enable Planning Authorities to obtain a "Stop Order", to restrain or prevent a breach or anticipated breach of planning control.
  • The law should be changed to: enable a financial penalty to be imposed on unreasonable Enforcement Notice appeals; restrict the circumstances in which an Enforcement Notice appeal can prevent the Notice taking effect; remove the appellants' automatic right to a Public Inquiry.
  • Time limits for taking proceedings against planning offences should be increased from 6 months to 2 years.
Recommendations not requiring legislative change include:
  • Planning authorities should adopt enforcement policies in the Development Plan, should have written procedures for enforcement set out in an Enforcement Manual, and should adopt a customer-centred perspective throughout the enforcement process.
  • There should be more delegation from elected members to officers of enforcement powers.
  • All enforcement staff should be effectively trained in enforcement procedures and good practice.
  • Planning authorities should make more use of the Breach of Condition Notice.
  • There should be a requirement for a valid planning application to include the name and address of the applicant, and for planning authorities to be formally notified of the commencement of a planning permission.
  • The Scottish Office should issue a consolidated Circular on Planning Enforcement, supported by good practice advice to Planning Authorities.
  • There should be more effective liaison between a planning authorities and the prosecution service on enforcement matters, Fiscal fines should be used for some classes of planning offences, and a national database of planning prosecution cases should be established.
  • Enforcement and Breach of Condition Notices should be included in the Register of Sasines or the Land Register.
'Review of Planning Enforcement', the research report which is summarised in this Research Findings, is available priced £5.00.
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