Planning:

• GENERAL

• development that does not have planning permission;

• development that has permission but is not being carried out in accordance with the conditions of the permission.

1.2. Enforcement legislation is complex and a schedule of the powers, available to the Local Planning Authority (LPA) are set out at Annex A. This is intended to be for general guidance only as the circumstances of each case will dictate action to be taken.

1.3. Local Authorities are advised to take formal enforcement action only in cases of obvious harm or nuisance and/or where persuasion and negotiation have failed.

1.4. The legislation, and government advice to its use, tends to give the benefit of the doubt to the person undertaking unauthorised development. The LPA is expected to give the contravenor opportunities to rectify the situation before serving a formal notice as a last resort. Furthermore, the LPA can be ordered to pay costs or have its decisions overturned, by the Planning Inspectorate on behalf of Parliament or the Courts, if its actions are considered too hasty or harsh or legally incorrect. 2.

ENFORCEMENT AIMS

2.2. Formal enforcement action can be complex, time consuming and expensive. The decision on whether action is expedient, and if so, which action to take, will need to take into account all the circumstances of each individual case. In practical terms consideration will be need to be given to:

• the impact of the unauthorised development;

• the potential damage to the environment;

• the benefit to be accrued from taking action.

2.3. It will not always be expedient to take enforcement action having considered the circumstances of the case. Enforcement powers are to be used in a reasonable manner, to remedy adverse impacts on the environment or on neighbours, and should not be used solely to regularise a situation where no planning permission exists. Such situations should be dealt with by negotiation. The fact that development has gone ahead without planning permission should not prejudice the consideration of a subsequent planning application if it is a reasonable use of land – in which case planning permission is likely to be granted, but if refused, enforcement action will be the usual consequence. Submission of a planning application does not automatically mean that permission will be granted.

2.4. The following aims are considered appropriate;

• To remedy breaches of planning control;

• To arrive at a solution based on agreement between all the parties involved wherever possible;

• To provide clear guidelines for objectors and those enforced against;

• To provide assistance in monitoring the requirements of section 106 obligations.

3.1. In implementing investigations and actions relating to breaches of planning control (enforcement actions) the LPA will seek to adhere to the following principles:

• The LPA will not take action just because there is a complaint or breach of planning control, particularly if there is no significant harm;

• Any action taken by the LPA must be for the public benefit. The enforcement process is not intended to be used for the resolution of individual disputes;

• The level of action will be commensurate with the breach;

• An action is taken by the LPA and not by any individual officer of the LPA;

• The LPA will strive to achieve fairness and reasonableness to all parties;

• The LPA will strive to keep the identity of complainants confidential unless otherwise agreed with complainants. However, successful enforcement action may depend on information from complaints given, for example, in legal proceedings, in which case confidentiality cannot be guaranteed;

• The LPA will not allow protracted negotiations to hamper the taking of action. This includes the submission of appeals or retrospective applications for consent.

• PROCEDURE

4.1. Initial Complaint: This should be made in writing where possible or details noted on a proforma in other circumstances. All complaints will be acknowledged within five working days of the complaint. Anonymous complaints will only be investigated where the breach of planning control is likely to result in serious harm to people or the environment.

4.2. Initial Assessment: An assessment will be made against a standard set of criteria to establish the initial priority to be given to the complaint and the initial course of action. The following issues will be addressed at this stage where possible:

• Planning enforcement action can only be considered against breaches of planning control. This includes breaches of the Planning and Listed Building Acts and subordinate legislation made under these Acts.

If initial investigation shows no such breach has occurred the LPA cannot pursue the matter through planning enforcement and no further action will be taken. The LPA will contact the complainant to inform them of its decision. If any contact has been made with persons alleged to have been in breach of planning control the LPA will also inform them of its decision.

If the matter may be of concern to another department of the Borough Council, County Council or a statutory body, the LPA will notify the department/body of the complaint and notify the complainant.

• If it appears to be a matter that may constitute a breach of planning control, further investigation, including a site visit, will be undertaken.

4.3. Priority: Further investigation will be made to assess the nature and scale of any breach. All cases will be allocated a Priority Category:

a. Category A: Cases where there is an immediate danger to the public and cases where unauthorised work is being conducted which is non-reversible, such as works to Listed Buildings , tree works or demolition.

Target time:

• Initial assessment/Site visit – 24hrs;

• Secondary assessment/response – 48hrs.

b. Category B: Cases where there is demonstrable harm to the amenity of the area through such things as noise, traffic, pollution, loss of light, increase in activity or physical impact or where works or operations are in progress.

Target time:

i. Initial assessment/site visit – 5 working days;

• Secondary assessment/response – 10 working days.

c. Category C: Cases where there is no general or non-specific impact on amenity or visual amenity or where the breach is of a technical nature only.

Target Time:

i. Initial assessment/site visit – 10 working days;

• Secondary assessment/response – 1 month.

NB – Whilst every effort will be made to meet response times in Category A outside normal working hours, the LPA cannot guarantee this in all cases.

4.4. The investigation of enforcement cases is likely to include discussions with the complainant, the owner or occupier of the land and contractors working on the land. It is also likely to include discussions with other council officers, at borough and county level and/or outside bodies such as the Environment Agency. Normally records will be kept including photographs, these records are for use by the LPA and are not for public inspection. However the information contained in them may be required in any legal proceedings taken by the LPA.

4.5. Following a detailed investigation a full assessment will be made, where necessary, in conjunction with the Borough Council’s solicitors. This assessment will decide on the appropriate course of action, Planning Policy Guidance Note 18 (PPG 18) sets out different courses of action depending on the nature of the case. Where further action is proposed both the complainant and the alleged offender will be informed, except in a case where immediate action is necessary.

• COURSES OF ACTION

• In all cases where development is carried out without planning permission

It is clearly unsatisfactory to carry out any development without first obtaining planning permission. However, it would not be in the public interest for the LPA to take enforcement action merely to regularise a situation when it is considered that an unconditional planning permission would be likely to be granted. In addition the LPA will not normally take enforcement action against private householders in order to remedy only a slight variation of what would normally be permitted by virtue of the provisions of the General Permitted Development Order. In such cases, the LPA would inform the householder or owner or occupier of the land that planning permission should, in their own interest, be sought retrospectively for the development, but would not pursue the matter.

5.2. Where unauthorised development can be made acceptable by the imposition of conditions:

Where it is considered, by officers that unauthorised development could be made acceptable by the imposition of conditions, the owner or occupier of the land will be encouraged to discuss the matter with Development Control staff and be requested to submit a retrospective application for consideration in the normal way. The fact that an application has been submitted retrospectively submitted cannot be allowed to influence the consideration of the planning merits of the proposal, either positively or negatively. Thus, the consideration of such an application will be made in the same way as had it been submitted in advance of the works taking place.

• Where unauthorised development is unacceptable on the site but relocation is feasible:

Where it is considered by officers that unauthorised development is unacceptable on its present site, but that it may be acceptable if it were relocated, the owner or occupier of the land will be invited to discuss the matter with development control staff and where appropriate with other officers of the LPA. If a breach persists, without agreement further action may be considered. This will be particularly appropriate where business is involved.

5.4. Where unauthorised development is unacceptable and relocation is not feasible:

Where it is considered by officers that unauthorised development is unacceptable and that relocation is not feasible, the owner or occupier of the land will be informed of this and be invited to discuss the matter with development control staff and where appropriate with other officers within the council. If the situation is not resolved in one month, formal action will be taken to cease the use on its current site or a decision to continue negotiations for a specified limited period, usually not exceeding one month.

• Where the unauthorised development is unacceptable and immediate remedial action is required:

In such cases where the breach of planning control is causing serious harm to the public amenity in the neighbourhood of a site or it involves unacceptable and irreversible works, immediate action will be taken.

5.6. Whenever it is resolved that formal action will be taken, a period of time will normally be given for the owner or occupier of the land to remove the unauthorised development or cease the unauthorised use. The time period will be commensurate with the type of breach, and would normally range between one and six months. An enforcement notice would incorporate a further formal time period for compliance before coming into force; again this would be commensurate with the type of breach, and would normally range between one month and one year.

5.7 Where there is no indication within six weeks of writing to the owner/occupier/developer in breach of planning control that an invitation to amend or submit an application will be taken up, the Council will then determine whether it is expedient to enforce against the breach in accordance with the principles laid out in this policy.

• UNAUTHORISED DEVELOPMENT – SMALL BUSINESS AND PRIVATE HOUSEHOLDERS

• Unauthorised development by small businesses and the self employed:

It is the LPA’s planning policy to encourage small businesses in suitable locations in the borough. In considering how to handle any enforcement case relating to a small business or self-employed person, the LPA will be aware that the cost of responding to an enforcement action may represent a substantial burden on such a business or person. Furthermore, it is possible that compliance with planning law would prevent the business from operating. The LPA will therefore make efforts to explore whether the business could be allowed to continue operating in an acceptable form and the means by which this could be achieved. Whilst it is not the LPA responsibility to find an alternative site, assistance will normally be given to the small business or self employed person to help them achieve an acceptable solution.

If a mutually acceptable solution is not possible and formal enforcement action is necessary, the LPA will normally make their intentions clear to the business or the self employed person at an early stage and then give them a time to comply with any notice. Unless it is urgently needed and enforcement notice will always be preceded by detailed discussions to explore alternative solutions.

• Unauthorised development by private householders:

The LPA will always bear in mind that independent professional advice may not be readily available to the householder and will seek to assist in advising the householder of the options available to them to resolve the matter. Where a breach of planning control arises because a householder has exceeded the “permitted development rights”, accorded by the Town and Country Planning (General Permitted Development) Order 1995, the LPA will take into account what could have been developed without the need for planning permission when deciding what action to take.

• ADVERTISEMENTS

7.1. The advertisement control system is regulated through the LPA by the Town and Country Planning (Control of Advertisement) Regulations 2007. The term advertisement is wide ranging and includes:

• posters and notices;

• placards and boards;

• fascia signs and projecting signs;

• pole signs and canopy signs;

• models and devices;

• advance signs and directional signs;

• estate agents boards;

• captive balloon advertisements;

• The regulations consider advertisements in three categories:

• advertisements which the rules deliberately exclude from the LPA’s control;

• advertisements for which the rules give deemed consent so that the LPA’s consent is not needed provided the advertisement is within the rules;

• advertisements for which the LPA’s express consent is always required;

Where an advertisement is displayed in breach of these rules the LPA may consider taking enforcement action to remove it. Enforcement regarding advertisements presents particular difficulties it is recognised that businesses will wish to promote their activities however, this must be done with due regard to safety and amenity considerations.

• Where an advertisement is found to be displayed without the grant of any express consent the normal response will be to serve a notice, under section 225 of the Town and Country Planning Act 1990, on the person displaying the unauthorised advertisement and if applicable the owner/occupier of the property upon which the unauthorised advertisement is displayed. This will require the responsible body to remove the unauthorised advertisement within a week of the service of the notice. If the advertisement is not removed at the end of the notice period then the LPA may remove or obliterate the unauthorised advertisement. In appropriate circumstances the LPA may consider the prosecution of the unauthorised advertiser or occupier or owner of the advertisement site.

It should be noted that section 143 of the Highways Act 1980 gives power to the highway authority to remove illegal structures in the highway and to recover expenses from the person responsible. The highway authority in the Borough of Berwick-upon-Tweed is Northumberland County Council. The Highways Agency is responsible for the A1.

• Planning Contravention Notice:

• gives formal warning that enforcement action is being considered;

• requires the recipient to confirm what activities/uses are taking place on land;

• would provide the LPA with an opportunity to request a planning application;

d. it is an offence not to comply.

• Section 16 Local Government (Miscellaneous Provisions) Act 1976:

• enables the LPA to establish facts about the ownership of land and other interests;

• will assist in determining who should be served with any notice e.g. freeholder, occupier, mortgagee, lessee;

• it is an offence to fail to respond to the requisition within the time limit and/or to give false information.

• Section 330 of the Town and Country Planning Act 1990:

• empowers a LPA to serve notice on:

i) The occupier of any premises;

ii) The person who directly or indirectly receives rent in respect of the premises.

• requiring them to:

i) State the nature of their interest

ii) Name and address of any other person known to them as having an interest in the premises;

iii) The purposes for which the premises are being used;

• The time when the use began;

• The name of any person known to have used the premises for that purpose;

• The time when the activities being carried on the premises began;

• An offence not to comply.

• Breach of Condition Notice (BCN) - Used where conditions imposed on a planning permission are not being complied with and is an alternative to an Enforcement Notice (EN):

• no appeal – if the condition is thought to be invalid or unenforceable a BCN may be challenged in the High Court;

• an EN may be more appropriate if there is any doubt as to the condition which has been breached;

• an offence to fail to comply.

8.5 Enforcement Notice – May be served where the LPA believe there is a continuing breach of planning control:

• specifies what the beach is and the steps/time frame to remedy the breach;

• there is a right of appeal;

8.6 Stop Notice – Served where the LPA believe that activity should cease before the end of the period of compliance of an EN:

• can have the immediate effect of requiring work to stop in the appropriate circumstances;

• can be served on any person who appears to have an interest in the land;

• provides an opportunity to prevent use/activity prior to the determination of an EN;

• can be subject to compensation claims;

• cannot prevent the use of a dwelling house;

• cannot prevent the carrying out of any activity if it has been carried out for more than four years ending with the date of the notice;

• Listed Building Enforcement Notice:

Where unauthorised works have been carried out to a Listed Building, the LPA may serve a Listed Building Enforcement Notice on the owner or occupier in addition the LPA may prosecute the relevant parties including contractors. The LPA may also prosecute for non-compliance with a Listed Building Enforcement Notice.

• Unauthorised works to trees:

Unauthorised works to trees within a conservation area or to trees subject to a tree preservation order may result in prosecution.

• Section 215 – Wasteland Notice:

The LPA may serve a Section 215 (Wasteland Notice) on the owner or occupier of any land it considers is adversely affecting amenity of the area. An appeal against a Section 215 Notice will be to the Magistrates Court.

• Injunction

Where the LPA consider it necessary to restrain a beach of planning control they may apply to the courts for an injunction.

• Direct Action and recovery of costs

Where all the above have not been successful the LPA may consider taking default action to secure compliance with the terms of an EN, carrying out the steps required in the notice and then taking action to recover the costs.

Annex A to

Enforcement Policy

SCHEDULE OF PRINCIPAL LEGISLATION WITH ENFORCEMENT PROVISIONS

• The Town and Country Planning Act 1990.

• The Planning Compensation Act 1991.

• Planning (Listed Buildings and Conservation Areas) Act 1990

• Town and Country Planning (Control of Advertisements) Regulations 2007.

• Town and Country Planning (General Permitted Development) Order 1995.

• Town and Country Planning (Use Classes) Order 1987.

• Local Government (Miscellaneous Provisions) Act 1982

• Caravan Sites and Control of Development Act 1960.

• Town and Country Planning (Trees) Regulations 1999.

• Human Rights Act.

• Data Protection Act.

• Police and Criminal Evidence Act (PACE)

• Regulation of Investigatory Powers Act (RIPA)

• Freedom of Information Act.