A Guide to Enforcement

The Council has a duty to investigate breaches of planning control and has powers under the planning legislation to remedy breaches. However it must be understood that the Council is not obliged by the Planning Acts to take enforcement action unless it is expedient to do so taking into account the provisions of the development plan and other material considerations. This means that each potential breach has to be treated on its individual merits.

To ensure that legally enforceable controls are used fairly, the Council has procedures for following up these matters.

Not all breaches of planning legislation are deliberate. Planning is a complex process and it is accepted and understood that individuals may not necessarily know, for example, that a particular type of permission is needed. The Council is happy to take a positive approach and help to achieve the correct outcome from the outset.

In this way, the Council seeks to back up other planning controls by ensuring that appropriate standards of fairness are maintained and that misguided actions of the few do not spoil the amenities or environment we all enjoy.

If you feel that you have a grievance about a new development or use of a building or land, which you think may not comply with approved plans or may not have the necessary planning or related permission, you are encouraged to make further enquiries in the following ways:

1. Speak to someone closely connected with the development eg, the owner or tenant. Perhaps this will be a neighbour. Try to get an explanation as to what is taking place and understand their point of view, establishing the facts of the situation.
2. Telephone the Planning and Economic Development Department and speak to a Planning Enforcement Officer. Contact details are provided later in this document.
3. Write to the Director of Planning and Economic Development outlining, in as much detail as possible, the nature of the complaint.
4. Go to your local Councillor’s surgery or write to the Councillor describing in detail the nature of the complaint and this will be referred to Planning and Economic Development Department for further investigation.

It should be made in writing giving the following information:

1. Your name, address and telephone number, so that we can respond to you in writing and keep you informed whilst your complaint is being followed up.
2. The precise location of the perceived breach of planning control.
3. The description of the activity or construction work taking place, with as much precise information as possible, eg the date on which work began, etc.

When the Council’s Planning Enforcement Officer receives a written complaint, the following procedure is followed:

1. The complaint will be recorded and acknowledged in writing within 5 working days.
2. A visit to the site and further research take place to establish whether or not the activity or building work is considered to be unauthorised.
3. If further action is considered to be necessary, contact is made with the owner/occupier of the property concerned and further investigations undertaken.
4. The complainer is informed of the course of action which the Council intends to take.

Written and telephone complaints which are made anonymously will not normally be investigated.

Further action will not be necessary or appropriate in all cases. There are a few basic considerations which must always be addressed when deciding whether or not to take formal enforcement action:

1. Do the works or activities being undertaken constitute a breach of planning legislation?

   If no, or if the position is insufficiently clear, no further action will be taken by the Council.

2. If YES, would the works or activities obtain planning permission if an application was submitted? If YES, no further enforcement action will be taken immediately, although the submission of a retrospective planning application will be sought. Such an application will be dealt with by the Council in the normal way. Permission may or may not be granted. If planning permission is not granted, enforcement action will normally follow if the breach continues. In certain cases the breach may be rectified by negotiation rather than by the Council taking formal enforcement action.

   In considering these and other factors, planning law provides that the Council must at all times act reasonably.The decision to act or not rests solely with the City Council and nobody else.

Since it is not always possible to anticipate how a particular case will develop, the timescale for resolving a complaint is difficult to estimate.

Progress can be delayed whilst:

• relevant and satisfactory evidence is collected and verified
• negotiations take place to try to resolve a case without the need for formal action
• a retrospective planning application is submitted and determined
• an appeal against a formal notice is discharged
• direct action by the Council is undertaken to rectify a breach
• a case is reported to the Procurator Fiscal and prosecuted in the Courts.

The Council appreciates that delay can be a cause of frustration and annoyance for complainers. The Council would ask for tolerance, as the causes of delay are most likely to be procedural or other factors outside its direct control.

There are several types of Legal Notice that can be served, each dependent on the extent and severity of the unauthorised building works or activity.

1. Planning Contravention Notice

   This is normally used at the start of an investigation and requires the person(s) on whom it is served to provide details of any operations or works which have been carried out, and of anyone with a legal interest in the site. A response must be made within 21 days, otherwise a legal offence has been committed and prosecution is a possibility.

2. Breach Of Condition Notice

   This Notice requires the person receiving it to comply with a previously approved condition which was attached to a planning permission. There is no right of appeal against this notice.

3. Enforcement Notice

   An Enforcement Notice lays down steps which must be taken within a set time-scale, to ensure that the terms specified in the Notice are complied with. The terms of the Notice take effect on a specific date (normally after a minimum of 28 days). There is a right of appeal and the terms of the Notice are suspended until a decision on the appeal has been reached by a Reporter appointed by the Scottish Government.

   There are separate Enforcement Notices for service in relation to Listed Buildings, Trees and Advertisements. The legal procedure is exactly the same as for an ordinary Enforcement Notice.

4. Stop Notice

   A Stop Notice is only used in particularly urgent or serious cases where public safety and related issues are of immediate concern.

   This is served at the same time as an Enforcement Notice and takes immediate effect. Whereas an Enforcement Notice takes 28 days to come into effect, the Stop Notice will state the steps which must be taken immediately to comply with the Notice.

   The use of this power will, in each case, be carefully considered by the Council before it is used, because if a Stop Notice is served without due cause, or a subsequent appeal against a parallel Enforcement Notice is upheld, the Council may be liable to claims for compensation.

5. Amenity Notice (Section 179 Notice)

   This requires the person receiving this Notice to tidy up a piece of land which has become untidy or unkempt. This does not usually relate to garden ground which has become overgrown.

6. Interdicts

   Interdicts and Interim Interdicts are applications made direct by the Council to the Sheriff Court in order to stop an alleged unauthorised development or activity and are used in cases of extreme urgency or importance.

7. Direct Action

   In certain circumstances the Council may decide to undertake the works necessary to rectify a breach of planning control and seek to recover the costs involved from the owner(s) of the land / buildings.

If a person receiving a Notice either ignores it or fails to comply with its terms, the Council has two options. Firstly, it can carry out the works stated in the Notice and thereafter send a bill for costs to the person who received the Notice. The Council has already undertaken “direct action” and has established an annual budget for this purpose.

Alternatively, it can report the circumstances to the Procurator Fiscal, and if the person(s) is subsequently found guilty of an offence in court, s/he may receive a fine of up to £20,000, or imprisonment in the most serious of cases.

Certain types of Notice can be appealed, as specified above. Information on the appeals procedure is contained within the Notices, i.e. details of how, and when an appeal may be made to Scottish Ministers. Appeals are dealt with by an independent Reporter, normally following an exchange of written submissions. Sometimes a public inquiry is necessary. The decision of the Reporter is final, except where there is a challenge to the Courts on a point of law.

• If you intend to alter your property or change its use, check with the Planning & Transportation Department to ensure that all necessary planning and related permissions have been obtained before you start.
• If you have a building warrant, it does not mean that you have planning permission.
• If you receive planning permission, stick to the approved plans and any applied conditions and do not alter the proposals in any way without first contacting the Planning and Transportation Department for advice. Depending on the degree of change a further planning application may be required to amend an existing planning permission or condition.
• If you receive a legal Notice, seek professional advice immediately and contact the Planning and Economic Development Departmetn for further information.
• Do not ignore any legal notice you receive.
• Failure to comply with a notice could mean a heavy fine or imprisonment.
• Where possible, the Council will attempt to resolve a potential enforcement case by negotiation before considering formal legal action.
• The Enforcement Officer is there to help, in often difficult and testing circumstances.
• The Council expects that no verbal or physical abuse will be directed against any of its staff in the course of their work.

All enquiries relating to Enforcement issues should be addressed in the first instance to:

Enforcement Officer, Dundee City Council
Floor 6, Dundee House
50 North Lindsay Street
Dundee DD1 1LS
Tel:  01382 433019
Fax:  01382 433013

Opening Hours 8.30am-5.00pm Monday, Tuesday, Thursday, Friday and 9.30am-5.00pm Wednesday

Those wishing to learn more about Planning Enforcement should consult the following documents:

• Circular 4/1999: “Planning Enforcement”, The Scottish Government Development Department, March 1999
• Planning Advice Note 54: “Planning Enforcement”, The Scottish Government Development Department, March 1999.

This web page should not be taken as an authoritative interpretation of the law. Independent professional advice should always be obtained in cases of planning enforcements.

Dundee City Council
Planning Enforcement Policy (November 2000; revised September 2006)

Background
The Council has a general discretion to take enforcement action against any breach of planning control, if it considers such action to be expedient, having regard to the provisions of the Dundee and Angus Structure Plan 2002 and the Dundee Local Plan Review 2005, which together constitute the Development Plan.

Part VI of the Town and Country Planning Act 1997, Chapter IV of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997, The Town and Country Planning (Enforcement of Control) (No 2) (Scotland) Regulations, 1992, Circular 4/1993 and Planning Advice Note 54 together provide the basis for the Council’s enforcement responsibilities.

Purpose of a Policy Statement
To ensure that Council members and officers, external agencies and the general public are aware of the Council’s approach to its enforcement responsibilities.

Objective of the Council’s Enforcement Policy
To ensure that developments are undertaken which conform to existing planning legislation or, in the case of planning and related consents that developments concur with the approved plans and with any relevant conditions.

Responsibilities
The Council’s enforcement powers are delegated to the Development Quality Committee, and under the terms of Standing Orders, to the Director of Planning and Economic Development and the Depute Chief Executive (Support Services).

The Council’s enforcement responsibilities will be administered on a daily basis by the Director of Planning and Economic Development through Enforcement Officers (01382 433319 or 433315), in close liaison with the Councils legal staff.

The Development Quality Committee will annually receive a report from the Director of Planning and Economic Development on enforcement activity, when the opportunity will be taken, if necessary, to amend its enforcement policies.

Guiding Principles
In considering the appropriateness of taking enforcement action, the Council will:

• assess each identified or reported breach of planning control without undue delay
• assess the breach with regard to the provisions of the Development Plan other material planning considerations and in particular whether the breach would adversely affect public amenity or the use of buildings meriting protection in the public interest
• instigate enforcement action commensurate with the breach to which it relates
• treat each potential breach on its individual merits, taking the above points into account, with the responsibility for determining priorities and scope of action being delegated to the Enforcement Officer in consultation with other relevant officers
• where there is an identified unauthorised development, firstly attempt by negotiation to persuade the owner/occupier to remedy the breach voluntarily
• not permit such negotiations to hamper or delay formal enforcement action, where required
• initiate formal enforcement action, where necessary, as rapidly as possible, taking into account the circumstances of each case
• acknowledge and record all notified potential breaches, indicating details relating to investigation and action.
• Enter on Statutory Registers all Enforcement Notices, Breach of Condition Notices, Stop Notices and Amenity Notices. The Register will be available for view free of charge by the general public.
• It will be the general responsibility of Planning and Transportation staff to notify an Enforcement Officer of any potential unauthorised development.
• On a risk-assessed basis, developments with planning permission will be monitored and inspected as necessary.

The Development Plan
Future Reviews of the Dundee Local Plan as appropriate will incorporate policies which provide a guide to enforcement priorities and practice and serve as a basis for the effective deployment powers, all in accordance with Para 14, of PAN 54.

Basis for Enforcement Action
In the event of unauthorised developments and breaches of conditions, the following stages of enforcement action will apply:

1. Anonymous written or telephone complaints will not normally be investigated.
2. All written and telephone complaints will be registered. Written notifications will be acknowledged in writing.
3. On notification of a confirmed breach of planning control, the Enforcement Officer will, in writing, require the breach to be regularised within one month.
4. If the breach is not regularised to the satisfaction of the Council, enforcement action will be instigated, firstly, with the service of a Planning Contravention Notice to establish that the formal action will be taken against the appropriate person(s). This will be served within 7 days of the expiry of the time period specified for the regularisation of the breach. Failure to reply to this Notice is an offence which will be reported to the Procurator Fiscal for possible prosecution.
5. If expedient to do so (in terms of this Policy Statement), where the breach has not been regularised, an Enforcement Notice or Breach of Condition Notice will be served within 7 days of the expiry of the Planning Contravention Notice.
6. The Notices will specify a date for compliance. The breach will be inspected within 7 days of the compliance date and significant steps must have been taken to rectify the breach within a further period of 10 days. If this 10-day period is exceeded, or if no efforts have been made at all to remedy the breach, the Council will report the circumstances to the Procurator Fiscal.

Urgent Action
Where there is an immediate threat to public health and safety, Stop Notices (and accompanying Enforcement Notices) will be used, subject to legal advice.

In circumstances where the Council considers that immediate action is required to halt or remedy a breach of planning control, it may, subject to legal advice, seek an interim interdict from the Sheriff Court, and/or exercise its powers to enter the land or building concerned to undertake work to rectify the breach and subsequently recover the costs from the offender.

The Council will establish, within the Planning and Economic Development Revenue Budget, a rolling contingency fund of £5,000 per annum in relation to this commitment.

Enforcement Manual
In accordance with the advice given in Planning Advice Note 54, the Council will prepare and keep under constant review a Procedures Manual for use by officers involved in the enforcement service.

Performance Indicators and Best Value
At present there are no Accounts Commission performance indicators relating to enforcement.

Status of this Policy Document
This document is not a definitive statement of the Council’s legal position on enforcement matters, nor should it be taken to be an authoritative interpretation of the law.

Please Note: This information can provide only a general summary of the development quality process.