Item 7 Appendix 1
West Dunbartonshire Council · 14 December 2022
Back to Planning Committee — 14 December 2022 and its agenda
Text extracted from the council's PDF. Layout and reading order may differ from the original.
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Planning and Building Standards Service December 2022 PLANNING ENFORCEMENT CHARTER
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West Dunbartonshire Council Planning Enforcement Charter 2022-2024 Contents Planning Enforcement Overview 3 Key points on planning enforcement 5 Main Issues 6 Section 1 Priorities for Enforcement 8 Section 2 How to comment on a possible breach of Planning Control 11 Section 3 Monitoring of Planning Conditions 12 Section 4 High Hedges 14 Section 5 Control of Advertisements 14 Section 6 How to make a suggestion or complain about lack of Planning Enforcement 16 Section 7 - Powers available to deal with breaches of planning control 17 2022 - 2024 Planning Enforcement Charter 1 ITEM 7 APPENDIX 1
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2022 - 2024 Planning Enforcement Charter 2
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Planning Enforcement Overview Planning permission is required for the majority of development that takes place in Scotland with the exception of a wide range of smaller scale development, including some changes of use, which is permitted development. Sometimes, however, developers or householders undertake work without planning permission or fail to implement the consent they have been granted in accordance with the approved plans and conditions. Councils have powers to enforce planning controls in such cases, if they consider it is expedient and in the public interest to do so. Councils monitor developments to ensure planning controls are being followed, but there is also a role for the public in alerting the Council to any breaches of planning control they become aware of. Enforcement can, in some cases, be one of the most complex parts of the planning system and can affect many members of the community. The aim of this charter is to ensure that adopted procedures are fair, reasonable, consistent and accountable, and that interested parties are fully aware of the procedures involved in the process, the powers available to the Council, and the limits of those powers. The Charter explains how the enforcement process works, the role of the Council and the service standards it sets itself. It also details what happens at each stage of what can be a lengthy process. We hope you will find this it useful and you will let us know if you think we could improve the service further. 2022 - 2024 Planning Enforcement Charter 3
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Key points on planning enforcement Breaches of planning control do not, in most cases, constitute a criminal offence; however, unauthorised works to a listed building, or to a tree protected by a Tree Preservation Order are an exception to this. The purpose of planning enforcement is to try and resolve the breach of planning control in the first instance where appropriate rather than to punish the mistake. However, enforcement action can be taken when it is deemed necessary to control the breach and to prevent further breaches occurring. Any action taken has to be proportionate to the scale of the breach and to the effect that it has on local amenity. In addition, not complying with any formal notice that is served can lead to criminal prosecution. The West Dunbartonshire Council has statutory powers to investigate development carried out without planning permission, the breach of conditions attached to planning consents and other environmental matters which give rise to concern over general amenity. This can include land which has been allowed to deteriorate to such an extent that it affects the appearance of a wider area. We will take formal action where a satisfactory outcome cannot be achieved through negotiation. This means that the Council has to consider whether it is in the public interest to take enforcement action, and may decide that no action is necessary. Where development has taken place without planning permission the Council would normally seek a retrospective application to consider the proposal or development before considering formal enforcement action, unless it was considered expedient to cease the breach of planning control to prevent further injury or harm to amenity, road safety etc. Enforcement action has to be taken within strict time limits: z A four year limit – this applies to “unauthorised operational development” (the carrying out of building, engineering, mining or other operations in, on, over or under land) and the change of use of a building to a single house. After four years following the breach of planning control, the development becomes lawful, and no enforcement action can be taken. z A ten year limit – this applies to all other development including change of use (other than to a single house) and breaches of condition. After ten years, the development becomes lawful if no enforcement action has begun. z There is no time limit for breaches of listed building control. The Council’s authority to take enforcement action comes from government legislation. Further information on the use of enforcement powers can be found in the Scottish Government publication Planning Circular 10/2009: Planning Enforcement . In relation to Listed Buildings and Conservation Areas guidance can be found in the Managing Change Series (Historic Environment Scotland): Intervention by Planning Authorities. 2022 - 2024 Planning Enforcement Charter 5
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Main Issues Is it a Planning Matter? It is a common perception that planning can intervene to resolve all environmental matters. Many issues that are raised are controlled through other regulatory bodies. The following are examples of issues that the planning enforcement cannot assist with: z Civil disputes i.e. neighbour nuisance/boundary and land ownership disputes z Enforcement of conditions on title deeds z Noise and odour complaints unless covered by a planning condition z General land maintenance e.g. grass cutting and untidy gardens The main objective ofplanning enforcementis to remedy the undesirable effects ofunauthorised development and to bring unauthorised activities under control, ensuring that the amenity of neighbours or a community is not adversely affected. A breach of planning control is: Operational development such as building or engineering works which; z does not have planning permission or benefits from permitted development rights. z material change of use of land or buildings which has a different or tangible impact in terms of land use. z development which has not been carried out in accordance with an approved planning permission. z failure to comply with a condition attached to a planning permission. Other matters which also fall under the scope of planning control are; z demolition taking place in Conservation Areas, without conservation area consent. z works carried out to a Listed Building which effect the historic character or setting. Planning and related consents, any conditions and also the approved plans can be viewed online at Public Access . 2022 - 2024 Planning Enforcement Charter 6
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The Council follows guiding principles in relation to planning enforcement: Expediency: Planning enforcement is a discretionary power which requires the Council to consider whether it is in the public interest to take enforcement action. There is no requirement for the Councilto takeany particular actiononabreachof planningcontrol; in many circumstances it is considered that action is not necessary or would be disproportionate to the breach. This approach is in line with Scottish Government guidance which states that formal enforcement action should not normally be taken where the breach does not cause harm. Consistency: Each enquiry presents its own unique set of circumstances, we will endeavour to carry out our duties in a fair, equitable and consistent manner. Proportionality: To ensure that any enforcement action taken is proportionate to the scale and nature of the breach that has occurred. Negotiation: The enforcement powers provide leverage to resolve breaches and are not intended to be used as a punishment. In all but the most severe cases requiring immediate attention, we will seek to negotiate compliance in the first instance. However, negotiations will not be allowed to cause unreasonable and unjustified delay. 2022 - 2024 Planning Enforcement Charter 7
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8 2022 - 2024 Planning Enforcement Charter Section 1 - Priorities for Enforcement Whilst all complaints will be investigated we recognise that when an enquiry is made there is a high expectation for the matter to be resolved quickly and delays can be frustrating. Due to the large number of enforcement enquiries we receive it is necessary for them to be prioritised and the available resources allocated appropriately and proportionately. Below is the Council’s classes of prioritisation. CATEGORY A z Breaches of conditions for major development z Demolition or alterations to Listed Buildings z Demolition of buildings in a Conservation Area z Unauthorised felling of trees - either in a Conservation Area, covered by a TPO or protected by planning condition CATEGORY B z Change of use of land and buildings z Alterations to buildings in a Conservation Area z Breaches of condition (local) z Domestic (extensions etc) CATEGORY C z Display of Advertisements z Fences, sheds, decking etc... z Untidy land
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What to Expect On receipt of a completed online planning enforcement form it is standard procedure for officers to: 1. Automated acknowledgement 2. Create an enforcement case 3. Undertake a site history search 4. Carry out desktop exercise 5. Visit the site (if required) Enquiries that do not fall within the planning remit will not be investigated further in such instances the enquirer will be advised. Where there is a suspected breach of planning control it may be necessary to utilise the notices described below to aid the enquiry process. These are not frequently used as other less formal means of doing so have proven to be effective. 2022 - 2024 Planning Enforcement Charter 9
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Service Standards Service Standard - Acknowledging enquiries z We will acknowledge the submission of the online form with an immediate automated response. Service Standard - Replying to enquiries/keeping you informed z If you make an enforcement enquiry, you will be updated as regularly as resources allow. This will be done by Email. Service Standard - Timescales for resolving enquires z The length of time required to resolve a case or take action can be affected by a number of factors. Progress can be delayed for the gathering of further evidence, to allow negotiations to take place or for formal procedures to be concluded. Similarly, an application to regularise the breach of control or an appeal against a decision of the planning authority can also delay resolution of the case. Accordingly, it is difficult to attach a fixed timescale to case resolution. z The Council recognises that delays, however, can be a source of considerable frustration. Consequently, we will try to keep interested parties informed of significant stages in the progress of a case. If there has been no progress for a period of 10 weeks, the Council will write to complainants to explain the delay. 2022 - 2024 Planning Enforcement Charter10
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Section 2 - How to comment on a possible breach of Planning Control Members of the public have a vital role in reporting breaches of planning control. Any concerns should be raised with us at the earliest opportunity. There is a Planning Enforcement enquiry form on the Council website which can be completed. This allows us to have a clear record of the complaint and to keep you informed about any action we take. Full contact details are provided at the end of the Charter. We need the following information when a suspected breach is reported: z The address of the property concerned; z The name of the owner of the property, or of the person responsible for the suspected breach; (if known) z Details of the suspected breach of planning control, photos with times and dates if relevant; z Your name, telephone number and address and email address; z Information on how the breach impacts on you. Link to online Enforcement Form. Email Compliancemonitoring@west-dunbarton.gov.uk 2022 - 2024 Planning Enforcement Charter 11
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Section 3 - Monitoring of Planning Conditions Monitoring of planning conditions will be carried out as resources allow, however, our number one priority for enforcement is numbers of conditions on major planning applications. It is not, practical or proportionate for the Council to monitor all permissions/consents. It is the responsibility of the developer to inform us of when they intend to implement their planning permission. This is done through the submission and registration of a Notification of Initiation of Development (NID). The Planning Officer will then check to ensure that any requirements containedwithinthepre development conditions have beenfulfilledbeforework begins. Initiating developmentwithoutsubmitting a NID isa breach ofplanning control and the planning authority may consider enforcement action. On completion of development the developer is required to submit a Notification of Completion of Development (NCD) as soon as practicable. Notification of Initiation and Completion of Development (NID/NOCD) and display of notices while development is carried out. These are not enforcement powers. They are intended to improve planning enforcement by requiring landowners, householders and developers to confirm when development is due to commence or been completed, and in the case of on-site notices to raise community awareness 2022 - 2024 Planning Enforcement Charter12
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of developments in the local area. West Dunbartonshire Council will then be made aware of active development in their areas, enabling then to prioritise resources with a view to monitoring development. ANotice of Initiation of Development (NID) must be submitted to the WDC for any development which has been granted permission and state when development will start. It must be submitted after planning permission has been granted and before development has commenced. Starting development without submitting an NID is a breach of planning control and WDC may consider enforcement action. The Notice of Completion of Development (NOCD) requires a developer to submit a further notice as soon as practicable after development has been completed. Depending on the nature and scale of a development, the developer may also be required to display on-site notices while development is taking place. These notices contain basic information about the site and the development. They also provide contact details where members of the public may find out more information or report alleged breaches of planning control. It is a breach of planning control to fail to display such a notice when it is required to do so. 2022 - 2024 Planning Enforcement Charter 13
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Section 4 - High Hedges The High Hedges Act 2013 aims to provide a solution to the problem of high hedges, where neighbours have been unable to resolve the issue amicably. The Act gives home owners and occupiers a right to apply to the relevant Council for a High Hedge Notice but neighbours must attempt to resolve the dispute themselves first with recourse to the Council being a last resort. The Scottish Government has also issued guidance to all Local Authorities to assist with implementation of the Bill and legislation. Guidance (PDF) has also been prepared to help explain the process and give you guidance on all reasonable steps that must be taken prior to making a formal application under the Act. Potential applicants may wish to make contact with ourselves to discuss a possible application. Section 5 - Control of Advertisements The display of advertisements is covered by the Town and Country Planning (Control of Advertisements) (Scotland) Regulations 1984. Many advertisements are displayed with what is called ‘deemed consent’which meanstheydo notrequire advertisementconsentifthey meetthe criteria and conditions set out in the regulations. One of these conditions is that the landowner has given permission for the advertisement to be displayed on their land. It should be noted however, that where an advertisement with ‚‘deemed consent‚‘ is considered to be affecting amenity or public safety then in these circumstances the can serve a Discontinuance Notice to have the offending advert removed. 2022 - 2024 Planning Enforcement Charter 14
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Displaying an advertisement in contravention of the regulations is an offence and, if convicted in court, an offender can be fined. The court can impose further fines for each day the breach of the regulations continues. The Council has the power to serve an advertisement enforcement notice. This specifies a time period (normally 28 days) for compliance with the notice. However, this period can be reduced to seven days if the Council believes there is an urgent need for the advertisement to be removed or altered in the interests of public safety, or if the advertisement can be removed without any other work being required. An advertisement enforcement notice can also require that a particular piece of land should not be used to display advertisements. This remains in force even if the original advertisement is removed. Any subsequent advertising on this site would amount to a breach of the notice. The Council has powers to remove or destroy placards and posters that do not have advertisement consent or deemed consent. If the person who put up the poster can be identified, they have to be given at least two days’notice that the Council intends to take the poster down. If they cannot be readily identified, then the advert can be removed immediately. Council officials can enter unoccupied land, if necessary, to remove an advertisement. However they have no powers to remove advertisements displayed within a building to which there is no public access. Planning enforcement also covers the display of advertisements such as billboards and advertisement hoardings, although slightly different procedures apply. These are set out in a separate section at the end of this Charter. The actual text and images on an advertisement are not covered by planning control. 2022 - 2024 Planning Enforcement Charter 15
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Section 6 -How to make a suggestion or complain about lack of Planning Enforcement The Council tries hard to meet people’s expectations and we hope that you will be satisfied with the planning enforcement service. We are committed to improving our service and dealing promptly with any failures or shortcomings. However, if you have any concerns or difficulties, we want to hear from you, Online Enforcement Form . We will respond to you within 5 working days of receiving a formal complaint about our Planning Enforcement Service where possible. If we feel that we need more time to investigate the matters raised you will receive an acknowledgement within five working days and a full response within 28 working days in accordance with the Council’s Complaints Procedure. Acopy of this can be viewed on the Council’s website. Lastly, if you are dissatisfied with the Council’s Complaints process, you have the right to take your complaint to the Scottish Public Services Ombudsman at: www.spso.org.uk Generally, you must contact the Ombudsman within 12 months of the date of the complaint. Attached to this charter for your information is Appendix 1 which explains the powers available to deal with breaches of planning control. 2022 - 2024 Planning Enforcement Charter 16
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Section 7 - Powers available to deal with breaches of planning control Enforcement powers The enforcement powers available to a planning authority are set out in the Town and Country Planning (Scotland) Act 1997 (as amended). Listed building enforcement notices are covered by the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997. The Planning Acts can be viewed at: www.legislation.hmso.gov.uk. Government policy on enforcement is set out in Planning Circular 10/2009: Planning Enforcement. Planning legislation is complex and therefore if you are served with a statutory notice from WDC planning authority, we advise you seek legal or independent professional planning advice. 2022 - 2024 Planning Enforcement Charter 17
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Types of Notices Enforcement Notice This generally deals with unauthorised development, but can also apply to breach of planning conditions. This must be served on the current owner, occupier and anyone else with an interest in the property or land in question. There are similar notices and powers to deal with Listed Buildings (see below), and advertisements. An Enforcement Notice will specify a time period for the notice coming into effect (a minimum of 28 days), the steps that must be taken to remedy the breach and the time for this to be completed. There is a right of appeal to the Directorate of Planning and Environmental Appeals (DPEA) up to the date the notice takes effect at which time the notice is suspended until a decision is reached. Failure to comply with an Enforcement Notice within time is an offence, and may lead to a fine of up to £50,000 in the Sheriff Court or the Council considering direct action to remedy the breach. Breach of Condition Notice This enforces the conditions applied to any planning permission if they have not been complied with and is effective from the date it is served. It may be used as an alternative to Enforcement Notice (see above), and is served on anyone carrying out development and/or any person having control of the land. Anyone contravening a Breach of Condition Notice can be fined up to £5,000 in the Sheriff Court. There is no right of appeal to this notice. Listed Building Enforcement Notice This mustbe served on the currentowner,occupier and anyone else with an interest in the property. The procedures are similar to those outlined above. The notice must specify the steps to be taken to remedy the breach and a final date for compliance. Failure to meet the terms of the notice by the date specified is an offence. There is the right of appeal to DPEA against the notice. Breaches of listed building control are a serious matter. It is a criminal offence to undertake unauthorised works to demolish, significantly alter, or extend a listed building. In certain circumstances, this can lead either to an unlimited fine or imprisonment. 2022 - 2024 Planning Enforcement Charter 18
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Stop Notice This is used in urgent or serious cases where unauthorised activity must be stopped, usually on grounds of public safety. When a Stop Notice is served, the planning authority must also issue an Enforcement Notice. There is no right of appeal against a Stop Notice and failure to comply is an offence. An appeal can be made against the accompanying Enforcement Notice. If a Stop Notice is served without due cause, or an appeal against the Enforcement Notice is successful, the Council may face claims for compensation. Therefore, the use of Stop Notices needs to be carefully assessed by the Council. It should be noted that a Stop Notice cannot prohibit the use of a building as a dwelling house. Temporary Stop Notice (TSN) This requires the immediate halt of an activity which breaches planning control. The provisions make an exception in that a TSN cannot prohibit the use of a building or caravan as a dwelling house. TSNs are enforceable for 28 days, after which time, they expire. They may, however, be followed by further enforcement action such as an Enforcement Notice and associated Stop Notice. There is no provision to appeal against a TSN. Fixed Penalty Notice (FPN) This provides WDC with an alternative process, in addition to the option to seek prosecution, to address situations where a person has failed to comply with an Enforcement Notice (EN) or a Breach of Condition Notice (BCN). By paying the penalty imposed by the FPN, the person will discharge any liability for prosecution for the offence. They will not, however, discharge 2022 - 2024 Planning Enforcement Charter 19
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the obligation to comply with the terms of the EN or BCN, and the Council will retain the power to take direct action to remedy the breach and recover the costs of such from that person. the Council is not required to offer the option of a fixed penalty. Any decision to do so would be dependent on considerations such as the scale of the breach and its impact on local amenity. The fixed penalty amounts to £2,000 for each step not complied with in an Enforcement Notice and £300 for each step not complied with in a breach of condition notice. Notice requiring application for planning permission Where the Council considers that a development which does not have planning permission may be acceptable, i.e. the Council considers that it might be granted planning permission, the Council may issue a S33ANotice requiring the landowner or developer to submit a retrospective planning application. This application will be considered on its planning merits and handled in the same way as any other planning application. Issuing a S33ANotice does not guarantee that permission will be granted; the Council may, on consideration of the application, decide instead to refuse planning permission, or grant permission subject to conditions or amendments to make the development acceptable. There is no right of appeal to this notice. Other Powers Notice requiring information as to interests in land This provides limited powers for planning authorities to obtain information on interests in land and use of land. Failure to provide the information required is an offence. Planning Contravention Notice (PCN) This is used to obtain information about activities on land where a breach of planning control is suspected. It is served on the owner or occupier, on a person with any other interest in the land or who is carrying out operations on the land. They are required to provide information about operations being carried out on the land and any conditions or limitations applied to any planning permission already granted. Failure to comply with the notice within 21 days of it being served is an offence and can lead to a fine in court. Amenity Notice This allows planning authorities to serve a notice on the owner, lessee or occupier of land which is adversely affecting the amenity of the area. This is also known as an Amenity Notice and sets out the action that needs to be taken to resolve the problem within a specified period. 2022 - 2024 Planning Enforcement Charter 20
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Interdict and Interim Interdict Planning authorities can apply to the courts to grant an interdict to stop or prevent a breach of planning control. Court proceedings can be expensive and the Council would normally only seek interdicts in serious cases or where Enforcement Notices or Amenity Notices have previously been ignored. However, the Council can seek an interdict in relation to any breach without having to use other powers first. Breaching an interdict is treated as a contempt of court and carries heavy penalties. Direct Action Failure to comply with the terms of an Enforcement Notice or Amenity Notice within the time specified can result in WDC carrying out the specified work. The Council can recover any costs it incurs from the landowner. Please Note This Charter does not comprise of an authoritative interpretation of the Planning Acts. Planning legislation is complex and if you receive any notice from West Dunbartonshire Council, you are advised to seek legal or independent professional planning advice. Updated December 2022 2022 - 2024 Planning Enforcement Charter 21
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CONTACT DETAILS Planning and Building Standards Council Offices 16 Church Street Dumbarton G82 1QL Telephone: 0141 951 7930 Email: Compliancemonitoring@west-dunbarton.gov.uk OTHER FORMATS This document can be made available on request in alternative formats such as large print, Braille, audio tape or computer disc as well as in five community languages.