How the Council deals with Unauthorised Development
Introduction
These notes are intended to offer a guide into what happens after a breach of planning control is reported to the Council. You will see that the Enforcement Process can be complex and time consuming and that care and scrutiny is needed at every stage. This page is intended as a guidance note only and should not be interpreted as fully authoritative legal advice.
- The complaint will be acknowledged and recorded in a confidential register. The substance of the complaint will be publicly available (including online), but names and addresses of complainants will not be released or made publicly available.
The Council undertakes to investigate ALL complaints received in writing, including via the internet.
- The breach of planning control will be investigated. This usually involves an inspection of the site (or series of inspections) and checking of the planning history/consents relating to the site. This will take place within 10 days of the receipt of the complaint and is intended to:
- establish whether or not a breach of planning control exists.
- determine the nature of the impact it is causing.
- Following (2) above, the Council will decide what course of action is to be followed.
This can be one of four:-
- no action: if no breach of control has been identified.
- planning application requested: if the breach has no unacceptable effects and simply requires 'regularising' or if it is debatable whether the effects are acceptable. The advantage of this approach is that by bringing the issue into planning application process, all interested parties are able to contribute to the decision, full analysis of the matter can be made within the democratic system and conditions may be applied to any approval granted. This approach is also necessary as the Government requires enforcement action to be taken only where the development causes "unacceptable effects on public amenity" (PPG18), and the application will be the "test" of whether this is the case.
- enforcement action instigated: moving directly to Enforcement Action will only occur if the development is clearly and beyond doubt unacceptable, e.g. it is contrary to development plan policy with no suggested justification and having a serious adverse impact. It is extremely unusual that the Council would move directly to the taking of Enforcement Action.
- further investigations are necessary: to establish evidence of a breach of planning control. These investigations would enable the Council to conclude which of the above courses of action to follow.
- Taking Enforcement Action: Following the refusal of planning permission or sometimes as a direct response to a complaint (see 3(ii) and (iii) above) the Council can take Enforcement Action. In these circumstances the original complainant will be notified and advised of the requirements of the notice and the timescales attached. To meet the legal requirements for serving notices it is often necessary to make further investigations into who owns and/or has an interest in the land concerned. This involves making use of a separate set of powers available to the Council, but inevitably can obstruct or slow down the process.
Depending on the courses of action described above, the next stage in the process may differ. In all cases, the original complainant(s) will be advised in writing. In the case of a request for a planning application, complainants will be advised of its receipt and given the opportunity to comment and participate in the process. If, ultimately, a planning application is granted (either by the Council or on appeal by the Secretary of State), no further action can be taken. If one is refused, the Council has clearly adjudged the development to be unacceptable and measures to remove it (or take measures to eradicate the effects adjudged unacceptable) can follow.
Sometimes, applications are requested but are not forthcoming. In these circumstances, the Council will assess the development on the same basis as it would a planning application, which in turn will determine whether or not Enforcement Action would follow and, if so, the form it would take. When no action is taken, the reason(s) for this will be explained to the original complainant(s).
The form of action that can be taken and the way in which it is done is governed by law and supported by advice by the Secretary of State (Planning Policy Guidance No 18) which the Council must follow to ensure its activities are effective - failure to do so mean that they can be challenged legally or on appeal, and will undermine any prosecution that may follow. Appeals are determined by the Secretary of State and he will, naturally, apply his own policy to such cases. It is important to bear in mind that the decision whether to take Enforcement Action should be based on the impacts of the breach of control which are assessed in the same way as a planning application. The appeal procedure allows appeals to be made on the basis that an Enforcement Notice can be defended on its planning merits. It is insufficient to base a case solely on the fact that the development was undertaken in breach of (or simply without) planning permission and the key "test" should be whether the breach unacceptably affects public amenity.
ENFORCEMENT FLOW CHART
The diagram below summarises the various stages
of the process described on the previous pages.
| COMPLAINT RECEIVED |  | COMPLAINANT ACKNOWLEDGED |
 | ||
| RECORDS CHECKED AND/OR SITE INSPECTED | ||
| ||
| BREACH OF PLANNING CONTROL IDENTIFIED | yes | COMPLAINANT ADVISED |
| yes | ||
| COMPLIANCE SOUGHT AND/OR APPLICATION INVITED | yes | |
| yes | ||
| APPLICATION APPROVED, COMPLIANCE ACHIEVED or BREACH ADJUSTED ACCEPTABLE | yes | |
| no | ||
| DETAILS OF INTERESTS AND EVIDENCE GATHERED AND ENFORCEMENT ACTION TAKEN | yes | |
