Planning enforcement policy
Development Control is a process that regulates the development and use of land to ensure that changes to our physical surroundings, buildings and land, are appropriate for their purpose and location.
Lancashire County Council's Development Group is responsible for this process for minerals extraction, waste management and for the County Council's own operational development. The district councils are responsible for all other forms of planning control. Enforcement responsibilities between the district councils and the County Council can be shared for some engineering operations involving inert waste. Decisions will be taken on responsibility for these types of breach in consultation with the District.
Development Control at a county level involves monitoring planning permissions and investigating complaints about county matter developments. This is to ensure that all development has the necessary planning permission and is being carried out in accordance with the conditions to that permission. Where this is not the case and a breach of planning control has occurred, we shall seek to rectify this through a process of negotiation. If negotiation fails we shall consider the need to take formal enforcement action by issuing an appropriate notice that by law requires that the breach be remedied.
About this policy
The County Council's enforcement policy seeks to:
- Clearly set out our objectives on planning enforcement and set out what planning tools are available to achieve our objective;
- Make our decision making process on planning enforcement transparent.
This policy commits the County Council to good enforcement practice and procedures. It sets out the standards of service that the public can expect, describes what businesses and others being regulated can expect from the enforcement process and explains how the public, community and businesses can contribute to, and participate in that process.
In accordance with paragraph 58 of the National Planning Policy Framework (NPPF) this Enforcement Policy has been prepared to outline the approach that will be taken by the County Council to investigate alleged cases of unauthorised development and take action where appropriate.
We investigate all complaints about planning breaches at mineral, waste management or County Council development sites. If we cannot easily remedy the situation by negotiation, we may take formal enforcement action. Our decision will be based on the facts of the case, the amount of harm resulting from the breach, whether or not it complies with the policies of the Development Plan and a consideration of the Human Rights Act 1998. These rights include, under Article 1 of the First Protocol, the right "to the peaceful enjoyment of possessions" which includes land and property rights. In line with Government advice, it is our objective to:
- Prevent serious or irremediable harm;
- Bring unauthorised activity under control;
- Remedy the undesirable effects of unauthorised development;
- Ensure breaches of a planning permission do not compromise the basis of any original planning permission.
In line with Government policy, we shall always seek to resolve breaches of planning control by negotiation. We shall only use formal enforcement action where negotiation has failed, as a last resort. Enforcement Action is a discretionary power to the Council. The Council will reserve the right to use the powers available to it as appropriate. If it chooses not to pursue enforcement action, the reasons for not doing so will be made clear and conveyed to the complainant.
The Planning enforcement decision making process
The County Council will investigate any alleged breach of planning control relating to mineral extraction or waste management in Lancashire. We will also investigate alleged breaches of planning control associated with the County Council's own development sites. However, beyond informal action we have no powers to take enforcement against the County Council's own developments. If for some reason informal action does not resolve the matter, the case would have to be forwarded to the relevant district council.
We have no responsibility for investigating complaints or taking enforcement action in Blackpool or Blackburn with Darwen Borough Council's administrative areas as these are unitary authorities.
Where the source of the complaint is from a third party the County Council will record and acknowledge receipt of a complaint within 5 working days of receipt. We will investigate the complaint within 21 days and inform the complainant of the outcome of the investigations within 28 days. Where a complainant is directly affected by an alleged breach of planning control at their home or place of work, it is important that the complainant provides details of their name, address, telephone number and email address (if available) so the alleged impacts can be properly assessed.
The County Council will investigate any alleged breach of planning control, whether it is the result of a complaint or whether it is found as part of the Council's monitoring procedures.
On receipt of a complaint, we will investigate to establish the facts of the case, visiting the site if necessary as part of our investigation. Photographic records may be taken. We will not disclose a complainant's name or address to anyone without express consent but if a site has few neighbours, it is possible that the complainant may be more easily identified. In some cases a complainant may be invited to provide evidence, however they would be under no obligation to do so and could decline if they wish and retain their anonymity.
Before considering any possible future action, our investigation must establish whether or not there is a breach of planning control. Even if there is a breach of control, it may not be expedient to take enforcement action if the breach is very minor. The County Council will decide whether or not the development is acceptable in principle and if anything needs to be done to bring it to a satisfactory standard. If it is not acceptable we will decide what action is appropriate to prevent it continuing.
Identifying a breach of planning control
There are many activities that can take place without the need for planning permission as they don't constitute development or because permitted development rights are available. In these circumstances there could be no breach of planning control.
There are other instances where no breach of planning control would occur. For example:
- The issue is a private legal matter.
- The matter is outside the control of planning law and is controlled by other legislation.
- There are no planning conditions on an existing site to control the subject of the complaint.
Where there is no breach of planning control, the County Council cannot take further action. Where it may be a breach of other legislation the County Council will refer the matter to the appropriate enforcing body for investigation.
A breach of planning control only occurs when:
- Development has commenced without the required planning permission; or
- There is a failure to comply with a condition on a planning permission; or
- Limestone pavement has been removed from a Limestone Pavement Order (LPO) area without planning permission.
Where breaches of planning control are identified, it is our objective to remedy the breach and any problems caused. We would first attempt to achieve a negotiated solution, reserving the right to instigate formal enforcement action as necessary. Immediate formal enforcement action would usually only be taken if the breach was likely to cause significant harm to the environment or local amenity.
Where information regarding the use of land is required, a Planning Contravention Notice may be served on owners or occupiers of the land. This will require information about the breach of planning control suspected and identify the breach to the person/persons responsible.
Time limits for taking enforcement action
In most cases, development becomes immune from enforcement if no action is taken:
- within 4 years of substantial completion for a breach of planning control consisting of operational development;
- within 4 years for an unauthorised change of use to a single dwelling house;
- within 10 years for any other breach of planning control (essentially other changes of use).
Breaches remedied by negotiation
In most circumstances where a breach has occurred, we will seek to negotiate to resolve the situation. In appropriate cases, we will also negotiate to achieve remedial works to remedy the breach, for example, the removal of waste that had been deposited. In these cases, providing the breach has been satisfactorily resolved, the County Council will not take enforcement action unless the breach were to persist or recur.
Breaches remedied by a retrospective planning permission
In other cases, the activity or development that is identified as a breach of planning control may appear to be an acceptable use or development of land. In these instances the County Council may invite the developer to submit a planning application to regularise the unauthorised development or the use of the land. The fact that the development has gone ahead without planning permission will not influence the consideration of any planning application.
A decision to grant planning permission will be taken after considering the nature of the proposal, assessing it against the policies in the Development Plan and the views of residents and other relevant organisations or bodies. Providing the development is considered a satisfactory use of land, planning permission may be granted, possibly subject to planning conditions, which would seek to control the development. Conversely, if planning permission is refused and negotiations have failed to remedy the breach, appropriate enforcement action may be pursued.
Where negotiation fails to resolve the breach
In those cases where negotiation does not swiftly secure a remedy, or the development is considered unacceptable in principle and does not cease, then we will decide whether or not to pursue formal enforcement action in accordance with this Policy.
Our decision on whether it is expedient to pursue further action will be made following a formal assessment of the breach. This assessment could follow consultation with other regulatory bodies and the relevant district council and would consider the nature, scale and impact of the development on the environment and on local amenity, the actual harm caused by the breach and the policies in the Development Plan. It would also assess and balance the human rights of both the local community and the person responsible for the breach. Our assessment of the breach will conclude what works are required and whether or not it is expedient to take further action, setting out reasons in support of that decision. There will be some cases where immediate action will be considered appropriate without consultation with other bodies where there is clear evidence that the breach of planning control is detrimental to the environment or the amenities of the area.
Where enforcement action is not expedient
In some cases where a breach has occurred and an assessment of the breach has concluded that the resulting harm is negligible, or 'de minimis', we would be unlikely to take further enforcement action as it would not produce a clear benefit to the environment or local amenity.
In other cases where either limited impact has occurred or the harm is temporary or has already ceased, then there is often little to be gained from taking formal enforcement action. In such cases we may conclude that it is not expedient to take further action.
Some activities that represent a breach of planning control may also be breaches of other legislation for example in relation to the unauthorised landfilling of waste. In such circumstances the County Council will seek to co-ordinate any action with that taken by other regulators.
Where enforcement action is expedient
Where breaches of planning control are causing significant harm to the environment or local amenity and we are unable to remedy the situation by negotiation, then we may consider it expedient to take appropriate formal enforcement action after an assessment of the breach.
We normally only take formal action when we have evidence that a breach of planning control has occurred and that it has caused demonstrable harm to interests of acknowledged importance. In addition we must show that the remedial actions identified are in proportion to the breach and will help to remedy the harm caused.
Once we have the relevant proof that a breach of planning control has occurred and officers have decided that it is expedient to take certain steps, enforcement action may be taken in conjunction with officers from the County Council's legal team.
What action can be taken?
There are several enforcement powers available that can be used against the landowner, the developer or anyone else with an interest in the land.
Our action would depend upon the amount of harm caused by the breach and the risk of further harm occurring. In general, the greater the impact of the breach on its surroundings and/or the local community, the stronger our action will be. There are a number of enforcement tools available to the Council and these are summarised as follows:
Planning contravention notice
This enables information to be gathered from the owner of land or someone using the land to establish whether a breach has occurred. Details of ownership, activities or uses being undertaken and relevant dates in addition to matters relating to conditions imposed on planning permissions in respect of the land, can be required to be given. The planning contravention notice can be effective in identifying whether a breach of planning control has taken place and those responsible for the breach.
Non-compliance with the requirement of a notice is an offence. The Council will reserve the right to pursue prosecution in appropriate cases.
Temporary stop notice
The authority may issue a temporary stop notice (TSN) where there has been an identified breach of planning control and when it is expedient that the activity, or any part of the activity that amounts to the breach, should cease immediately. Unlike a ‘stop notice’, a ‘temporary stop notice’ can be served on its own; there is no requirement for it to be served with an enforcement notice. Representations can be made to the authority but there is no right of appeal against the service of such a notice, although it can be challenged by way of applying to the High Court for a judicial review. The notice has effect immediately but ceases to have effect after 28 days, unless it is withdrawn earlier. This allows a period of time (up to the maximum of 28 days) for the local planning authority to decide whether further enforcement action is appropriate and what that action should be, without the breach intensifying by being allowed to continue.
As a TSN prevents an activity from continuing, there is a right to claim compensation against the local planning authority if the notice has not been served properly. There is risk of immediate prosecution for failing to comply with a TSN, for which a fine is payable on summary conviction for the first offence, and for any subsequent offence, or on conviction on indictment to an unlimited fine.
Breach of condition notice
Where a planning condition has been contravened, a Breach of Condition Notice can be issued and served on all interested parties to require that the breach stops and is not repeated. No appeal can be lodged against a notice of this nature. However, the operator is given at least 28 days before the notice takes effect so they can instigate action to remedy the breach.
The notice will specify the steps which the Council consider ought to be taken, or the activities which they consider ought to cease, so as to secure compliance with the condition(s) specified in the notice.
This is issued where a breach of planning control has caused harm to the environment or local amenity. Once issued by the Council the notice is served on all interested parties. The enforcement notice specifies exactly what, in the Council's view, constitutes the breach of control and what steps the Council require to be taken, or what activities are required to cease, to remedy the breach and the time periods within which the steps should be taken.
An enforcement notice does not take effect for 28 days, during which time the developer or landowner may appeal. Any appeal suspends the requirements of the notice until the appeal is determined. However, once the notice takes effect, the remedial works set out in the notice must be carried out within the specified timescale. Failure to achieve this would constitute a criminal offence for which the offender could be prosecuted.
Where the County Council considers it expedient that a breach of planning control should cease before the expiry of the period for compliance in an enforcement notice, a Stop Notice may be issued. A Stop Notice may only be issued with or following the issue of an enforcement notice. A Stop Notice normally takes effect after 3 days, although if special reasons exist, e.g. if significant or irreversible harm is taking place, a Stop Notice can take effect immediately.
The Council, where they consider it expedient for any actual or apprehended breach of planning control to be restrained, may apply to the High Court or County Court for an Injunction. An application can be made whether or not the Council have exercised, or propose to exercise, any of their other powers to enforce planning control.
It is for the Council to decide whether to initiate injunctive proceedings. Consideration will be given to the following in making that decision:
- Evidence that a breach of planning control has already occurred, or is likely to occur on land in the Council's area;
- Injunctive relief is a proportionate remedy in the circumstances of the particular case.
- All relevant considerations including personal circumstances have been taken in to account.
What might happen after a notice or injunction is issued
All notices and injunctions set out what is required and state how long the owner or developer has to complete those works. The length of time for compliance depends on the severity of the problem and the type of notice issued. However, if the landowner/operator lodges an appeal, this will suspend the requirements of the Enforcement Notice, unless an accompanying Stop Notice has also been issued. Notification of an appeal will be by site notice and press notice. If a notice has been issued following the refusal of a planning application then all those who made representations on the planning application will also be consulted. The Planning Inspectorate determines the appeal, so it is outside the control of the County Council and this commonly delays the remedial works. If no appeal is lodged within 28 days then the Notice comes into force and its requirements must be complied with in the specified timescale.
Following the serving of a notice, we will visit sites regularly to monitor compliance. If we find that the requirements of the notice are not being complied with, we will inform the landowner or developer and the likely consequences. If the developer or landowner fails to comply with the requirements of the notice, we will consider prosecution. If the notice is complied with, it will remain in force, unless withdrawn, but confirmation of compliance can be provided to a landowner or developer if requested.
The County Council's objective throughout the enforcement proceedings is to prevent and remedy harm to the environment and local amenity. In cases where the owner or operator has failed to comply with the requirements of a notice, the only way in which the County Council can secure its objectives is to prosecute for non-compliance.
The failure to comply with the requirements of a notice or an injunction is an offence. Whilst the aim of the criminal process is to punish wrongdoing, the County Council's decision to prosecute as part of enforcement action, is not to penalize but to prevent further harm and to act as a deterrent to others.
Prosecution is a serious matter and will only be taken after a full consideration of the implications and consequences and the details of the case, including any changed or mitigating circumstances. Decisions about prosecutions will take account of the Code for Crown Prosecutors. A prosecution would not be commenced or continued unless there is sufficient, admissible and reliable evidence that the offence has been committed and that there is a realistic prospect of conviction.
Factors that we will consider in deciding whether or not to prosecute include the harm caused by the offence, the intent and personal circumstances of the offender, the history of offending and the deterrent effect that the prosecution may have on potential future offenders. Where the likelihood of success is remote, this is likely to deter the County Council from pursuing a prosecution.
If we prosecute and the Court rules in our favour, the offender will normally be fined.
If following conviction, the requirements of a Notice are still not carried out, the County Council will consider the need to prosecute again. If convicted, the offender could expect an increased fine. If an injunction were breached the County Council might refer the matter back to the Court that made the order. The Court would decide how to deal with the breach but in the most serious of cases, it could lead to a custodial sentence.
In certain circumstances, direct action involving the County Council going onto the land to do the works required as part of an enforcement notice or breach of condition notice may be taken to ensure compliance. The decision to initiate such action will be taken by the County Council following the completion of a cost/benefit audit. The recovery of the cost of this action will be sought from person(s) with an interest in the land. Alternatively a charge may be placed on the land to cover the costs of completing the works.
The County Council is committed to protecting the environment and local amenity and in the majority of cases will seek to remedy breaches of planning control by negotiation.
The process of dealing with a complaint will be open and transparent we will be accountable for our decisions, actions and service on planning enforcement. We will be consistent in our approach, always working in accordance with our own agreed procedures.
A range of formal enforcement powers is available to the County Council to remedy the undesirable effects of unauthorised development. We will use the powers available in a manner proportionate to the impact or harm resulting from the breach.
This policy commits the County Council to good enforcement practice and procedures and provides the means to control unauthorised development effectively for the benefit of the environment in general and to prevent the residents of Lancashire from being subjected to unreasonable harm.