Planning enforcement can be a complicated and lengthy process. In order to help you understand the process, we have set out a series of frequently asked questions with answers that should help to explain the process to both the complainant and the person being investigated.
Q. I've received a visit from a Planning Enforcement Officer. What does this mean?
A. It is likely that the Council has received a complaint or query alleging that development is being carried out at your property without planning permission. This can include building work, e.g. the construction of an extension or an outbuilding, or a material change of use of the premises, e.g. running a business from home or the creation of a new unit of residential accommodation. In order to ascertain whether an alleged breach of planning control is taking place it is usually necessary for the Council's Enforcement Team to visit your property. This will normally be carried out without prior appointment. If works are being carried out that are deemed to be a breach of planning control, the investigating officer will normally advise you in writing how the Council intends to deal with breach. If there is no breach, then the Council will close its file and no further action will be taken.
A. Section 196 of the Town and Country Planning Act 1990 (as amended) gives authorised officers of the Council the right to enter land to ascertain whether a breach of planning control has occurred. It is an offence to obstruct an officer. Officers are required to give 24 hours notice before entering a building used as a dwelling house, although this does not apply to the area around a dwelling or outbuildings. Similar powers of entry exist for listed buildings. When visiting sites that are occupied, officers will always try to make themselves known to anybody on the site and explain the reasons for the visit before proceeding with any inspection. If officers are not able to gain full access to the land and there is no-one around to assist them they will normally leave a calling card asking for the owner or occupant to contact them to make arrangements for a further visit. In cases where access is denied, officers can apply for a warrant in the Magistrates Court.
A. If the Enforcement team think that there may be a breach of planning taking place on a site we can issue a Planning Contravention Notice. This is a legal document that requires landowners or occupiers to provide the Council with certain information about activities that we believe might be taking place on land. Failure to provide the information required by the Notice within 21 days is a criminal offence liable for prosecution in the Magistrates Court (maximum fine £1,000). It is also an offence to knowingly or recklessly provide information that is false or misleading (maximum fine £5,000). The Planning Contravention Notice is a useful tool and assists the Council in determining whether or not a breach of planning control has taken place. In addition to the risk of prosecution, failure to return a PCN may result in enforcement action being taken based on the information available to the Council.
A. If the breach is minor and can be resolved through negotiation or by voluntarily compliance the landowner will normally be given the opportunity to remedy the situation within an agreed time period. If officers consider that the works are likely to receive planning permission then the landowner will be invited to submit a retrospective planning application in order that the development may be regularised, although any planning application will need to be assessed in relation to planning policy and other considerations and there is no guarantee permission will be given. If the breach is serious, and there is no prospect of planning permission being granted and the landowner is unwilling to cease or remove it, then the Council will usually take immediate enforcement action.
A. Enforcement action by the Council is discretionary and should always be proportionate to the harm caused by the unauthorised building or use in question and it should not be taken solely to regularise a technical breach of planning control. If the development is in accordance with national and local planning policies, and is not causing harm to the amenities of the area, then it is not usually necessary for the Council to take enforcement action even though the breach exists. However, if the development is acceptable in principle, but there are aspects of the development that need to be controlled, then the Council may decide to under-enforce. This still involves an Enforcement Notice being issued, but rather than requiring the use to cease or building works to be removed, restrictions are imposed on how the development can operate (similar to the imposition of conditions on a planning permission). Landowners should take note that the issuing of an Enforcement Notice can prevent or cause difficulties with the future sale of land or property and it is therefore in their interests to regularise unauthorised development through the submission of a retrospective planning permission where possible.
Enforcement action is a discretionary power and it has been left to local authorities to decide whether a particular development is harmful in planning terms and how it intends to resolve the matter. In cases where no further action is taken, the Enforcement Officer would normally complete a ‘non-expediency’ form detailing the reasons for this decision.
A. At the moment the fee for a retrospective planning application is the same as a normal planning application (different fees apply to different types of development, which are set nationally). Details of planning fees are available on our website. However, the Government has previously indicated that they may allow local planning authorities to set their own fees. If this happens, it is likely that retrospective applications will attract a surcharge and therefore cost more than normal applications.
Q. Can I find out who complained?
A. The complainant’s details are confidential. Details that might reveal the identity of a complainant will not be disclosed, even if a request is made to the City Council under the Freedom of Information Act or the Environmental Information Regulations.
A. Under a Freedom of Information / Environmental Information Regulation request, it may be possible for you to see the enforcement file, although the complainant’s details or anything that might lead to the complainant’s identity being revealed will be removed.
A. The Enforcement Team do not usually accept anonymous complaints. In order for the team to investigate an alleged breach of planning control, they will first need basic information from the complainant about the breach in order to substantiate its authenticity. It may be that having visited the site, the investigating officer concludes that there is no breach or the complaint was unfounded. If further complaints are received from the same source, the matter will only be pursued if detailed confirmation of the breach is provided beforehand. Very occasionally repeated complaints of a similar nature can be made by one party about a particular address. In these circumstances officers will need to decide if the complainant is behaving unreasonably and, if this is judged to be the case, no further action will be taken relating to that complaint.
Q. My neighbour is undertaking building works at his property and I do not believe that he has planning permission? What should I do?
A. Not all works require planning permission. Details of works that are permitted development can be found on the planning portal’s website http://www.planningportal.gov.uk/permission/. If you believe that the works require planning permission, then you can check whether planning permission has been granted on the Council’s website http://www.winchester.gov.uk/EnvironmentAndPlanning/Planning/PlanningApplications/OnlinePlanningApplications/. If you are uncertain whether or not planning permission from the Council is required you can phone the Planning Management Team for advice (via the Council’s Customer Services team Tel: 01962 840 222). If you wish to report a breach of planning control then you should phone the Enforcement Team. Anonymous complaints will not normally be accepted. You will be asked to give your name, address and contact details. Your details will remain confidential. Providing your details means that we can keep you updated on the progress of the investigation and can also contact you if we need any further information to assist us in our investigation.
Q. My neighbour has planning permission for building works at his property, but it does not appear to be being built in accordance with the approved plans.
A. It is the responsibility of the person implementing the planning permission to ensure that the works are in accordance with the approved plans. At present, the Enforcement Team only have the resources to monitor certain types of developments to ensure that they are being built in accordance with the approved plans and that all conditions are being complied with. If you suspect that a development is not being built in accordance with the approved plans or conditions you should first check the plans on the Council's website: http://www.winchester.gov.uk/EnvironmentAndPlanning/Planning/PlanningApplications/OnlinePlanningApplications/
It is possible that a non material minor amendment may have been agreed by planning officers following the grant of planning permission although, as the name suggests, this would normally involve modest alterations and would not usually mean that the development is being made larger or additional windows inserted at first floor level for examples. If you are still concerned that the works being undertaken are not in accordance with the approved plans then you should contact the Enforcement Team at the earliest opportunity so that the works can be inspected. It will be necessary for you to tell us why the works do not comply with the approved planning permission, e.g. roof is too high, additional windows inserted, etc..
Q. My neighbour is undertaking activities at his property that are noisy. Can you do anything about this?
A. If the noise relates to a breach of planning control, e.g.. running a business from home without planning permission when it is required, then it will be considered by the Enforcement Team during their investigation. Noise is a material planning consideration and the Council may refuse planning permission if the level of noise generated is deemed to be harmful to the amenities of neighbouring properties. The Council’s Environmental Protection Team is responsible for investigating statutory nuisance, including noise, and may carry out their own investigation. If the Enforcement Team has already taken action to secure the cessation of a noisy activity then the Environmental Protection Team will normally wait for the outcome of that investigation before taking their own action, although in extreme cases, they may also consider it necessary to issue a noise abatement notice.
Noise generated as a result of construction work would be a matter for the Council’s Environmental Protection team to investigate.
Q. I made a complaint but have not heard from the Enforcement team for a while.
A. Anyone who makes a complaint that is logged onto the Council's enforcement record system will receive an acknowledgement letter or email detailing the case number and the name of the officer investigating the complaint. We aim to respond within 8 weeks with an update, but sometimes due to high workloads or the complexity of the case, this may be longer. If you require an update, please phone the case officer. It can take several weeks before the case officer is able to visit the site, contact the landowner, and come to a view as to whether the development requires planning permission (is a breach) and whether permission might be granted.
Q. Why have I been sent log sheets?
A. We will normally send log sheets to a complainant if their complaint involves a breach of planning control which can be difficult to monitor by officers, e.g. a temporary, intermittent or irregular use, or activity which takes place out of normal office hours. Log sheets showing activity over a few weeks can be useful evidence in helping the Council establish whether or not a breach of planning control is taking place.
Persons who receive log sheets are usually asked to make a note of any activities they see during their normal day to day living e.g. vehicles coming and going from the site, lights on at night..
Q. The Enforcement Team has mentioned lawful use. What does this mean?
A. If the development investigated by the Enforcement team requires planning permission but, in the case of building work, has been substantially complete for more than 4 years, or in the case of a material change of use, has operated continuously for 10 years, then it will be immune from enforcement action and therefore lawful. In the case of use of a building as a single dwelling house the relevant period is 4 years. In order to establish whether the development is lawful, the landowner will normally be invited to submit an application for a Certificate of Lawfulness for an Existing Use or Development (CLEUD). The applicant is required to provide evidence to support the claimed lawful use or development. The application will be dealt with by our Legal Services team who will make the decision based on whether it is more likely than not that the available evidence shows that the development is immune from enforcement action ( the balance of probability test). Neighbours and Parish Councils are usually notified of such applications and are able to comment on the evidence submitted or provide their own evidence on the historical use of the land or building. Such applications are based on fact. Normal planning considerations do not apply. If a lawful use is proven and a certificate granted, then the Council will usually be prevented from taking any enforcement action and the case will be closed.
A. There have been some recent high profile cases involving houses that have been built behind hay bales and in barns, where the landowners concealed their actions in order to benefit from lawful use. As a result, the Government has introduced new powers through the Localism Act that allows local authorities the opportunity to pursue enforcement action against developments that come to light, even if 4 or 10 years has already passed and they would have otherwise been lawful. In cases where a landowner conceals development from the local authority it will therefore be much harder for them to become immune from enforcement action in the future. Development which has not been concealed, will, however, still have to be assessed against the 4 or 10 year periods referred to above and could therefore still be accepted as being lawful and immune from enforcement action.
Q. Is there a right of appeal against an Enforcement Notice?
A. Yes, the recipient of an appeal Enforcement Notice has the right of appeal (provided they have a legal interest in the land). An appeal must be lodged by the date provided in the Notice which is at least 28 days from the date the Notice is issued. If an appeal is lodged then the Notice is suspended until the appeal process has been concluded. The appeal is similar to an appeal against the refusal of planning permission and is dealt with by an independent Inspector appointed by the Planning Inspectorate based in Bristol.
An appeal against an Enforcement Notice can be lodged on various grounds, including:
- That the development alleged in the notice is not a breach of planning control;
- That is was too late for the Council to take enforcement action (as the development has already gained immunity);
- That planning permission should be granted for the development alleged in the Notice;
- That the requirements of the notice are excessive and lesser steps would overcome the harm; and
- That the compliance period is too short and a longer period should be given.
An important point to note is that the appeal could result in planning permission being granted for the development (although to do this, the person lodging the appeal must pay double the usual planning fee if they have not applied for retrospective planning permission for the same development). Neighbours will be notified in writing of the appeal and given the opportunity to comment direct to the Planning Inspectorate. In addition, if the appeal is in the form of a hearing or a Public Inquiry, interested persons will have the opportunity to attend and give evidence in person. The appeal process can take several months. The inspector appointed to determine the appeal will always undertake a site visit, and if he/she feels it necessary, will visit adjacent land / properties in order to fully assess the appeal.
If the appeal is dismissed, then the Enforcement Notice will be upheld.
If the appeal is allowed (this could be for any of the grounds i – iii listed above), then the notice will be quashed and will have no effect. Sometimes the inspector may allow the appeal in part, e.g. vary the requirements of the notice or allow a longer compliance period, but the notice would still be upheld.
Q. What happens if an Enforcement Notice is not complied with?
A. An Enforcement Notice will normally contain certain requirements that the landowner, or the person responsible for the breach, has to comply with. There is a compliance period, which starts when the notice takes effect. If the requirements of the notice have not been fully complied with by the expiration of the compliance period then a criminal offence is committed. The Council can prosecute in the Magistrates Court (maximum fine £20,000) or the Crown Court (unlimited fine). For more serious cases, or where prosecution has failed to secure compliance, the Council can seek an Injunction in the County or High Court. In certain circumstances, the Council can take direct action, i.e. go onto the land and undertake the works required by the notice. The landowner will then be charged the bill for the works. This would only be considered in the most serious cases. In most cases, the threat of prosecution or the commencement of prosecution proceedings is enough to secure compliance, although further legal action is required in certain cases.
Q. I don't feel that my complaint is being given the attention that it deserves.
A. On average, the City Council receives between 300 – 400 new enforcement complaints a year, which vary in complexity. In March 2008, the Council brought in a system of prioritisation for investigating alleged breaches of planning control. This is set out in the Council’s Enforcement Policy. The Council’s resources are directed to the most serious breaches and those causing the most harm. Breaches of lesser importance will still be investigated although will not be a high priority. The enforcement process can be long and convoluted, although the Council will endeavour to progress the matter as quickly as its resources allows.