Planning, monitoring and enforcement

Planning permission is usually required for changes to the use of a building or land, altering or enlarging a building and displaying advertisements. However, some changes can be carried out without the need for a formal planning application under permitted development.

If a building operation is carried out under permitted development it cannot be subject to enforcement action even in instances where development is considered to cause harm. The government set out permitted development rights for a variety of developments which do not require planning permission and therefore can be carried out without the control of the local planning authority.

To find out more about permitted development click here.

If a development is carried out without the benefit of planning permission it is deemed to be unlawful. It is not an offence (or illegal) to carry out buildings works without planning permission. If enforcement action is taken, it can become an offence if a failure to comply with the requirements of any enforcement action occurs.

No two cases are identical when it comes to enforcement. The process can therefore often be lengthy and involve complex legal and planning issues. Not all matters can be addressed immediately, so an instant response cannot be guaranteed.

The council has an adopted enforcement strategy which sets out how enforcement cases are processed and assessed. The information in the following pages will provide an overview of how the enforcement system within Northumberland works.

To look at the draft enforcement strategy for Northumberland click here

The following are examples of matters that can be enforced by the council under planning legislation:

• Building work and/or a material change of use undertaken without planning permission being granted;
• Development not being carried out in accordance with the approved plans of a planning permission, and
• Non-compliance with conditions attached to a planning permission
• Works to trees protected by a Tree Preservation Order or trees in a conservation area.
• Land or buildings in a very poor condition which are seriously affecting the amenity of the surrounding area
• Building work or alterations to listed buildings or works which will affect the setting of a Listed Building with listed building consent
• Unauthorised advertisements or signs
• High hedges as defined under the Anti-social Behaviour Act

Development carried out under and in accordance with ‘permitted development rights’ is not a breach of planning control. This may mean that works to land or property can occur without any notification being received by local residents or the council.

Permitted development does not require planning permission, so in some cases undesirable development may be able to be carried out without the council having any control over it. In these cases, the local planning authority are unable to take any enforcement action but can undertake checks to ensure compliance with national legislation which sets out permitted development rights.

The following are examples of matters which we cannot take enforcement action on:

• land ownership disputes
• neighbour disputes which are civil in nature, such as boundary disputes
• breaches of a covenant attached to deeds and land titles
• noise/odour issues (these are dealt with by the public protection team)
• obstruction of the highway
• parking vehicles on the highway

When we receive a complaint, it is prioritised dependent upon the severity of the breach and the likely harm it is causing. It is acknowledged that some alleged breaches need be given a higher priority than others. Priority will be given to cases where there is the possibility of the greatest harm being caused.

The following priority system will apply to each case received according to the following categories:

High priority

Cases where there is serious and immediate danger to the public, and where unauthorised work is being undertaken which is non-reversible such as works to listed buildings or works to protected trees. For these cases, an initial site visit will be carried out within 1 working day from the receipt of the complaint.

Medium priority

Cases where there is immediate 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. For these cases, an initial site visit will be carried out within 10 working days.

Low priority

Cases where there is no specific impact on amenity or where the breach is of a technical nature only. This could include change of use, breach of condition, untidy land, unauthorised advertisements and minor developments. For these cases, a site visit will be carried out within 20 working days.

During the course of an enforcement investigation, it may be appropriate to re-assign a case with a higher or lower priority. This is at the discretion of the case officer dependent upon their initial investigation, desk-based assessment and a site visit, if one has been undertaken.

The enforcement team will seek to acknowledge all complaints within five working days. In most cases this will be in writing, or by telephone if no postal or email address is provided. The person who makes a complaint (the complainant) will be updated within 28 days from the date when the complaint was received. The purpose of this update is to inform them whether there is a breach of planning control and, if so, how we intend to pursue the matter.

The acknowledgement will describe the nature of the breach, the name and contact details of the enforcement officer dealing with the case, the allocated priority level and the timescale in which the complainant should expect to receive a response. It will also explain that the investigation into an alleged breach of planning control can be complicated and, in some cases, further updates will be given every 28 days until the matter is resolved.  

Following the receipt of a complaint an initial assessment is carried out to determine if a site visit is required. An example of a case where a site visit is not needed is where planning permission has already been granted or a retrospective application is in the process of being determined. In most cases a site visit is required.

After undertaking an initial site visit the case may need to be assigned to a different priority level and further investigation may be needed. From the evidence gathered during the site visit an assessment will be made as to whether planning permission is required for the works. Cases will fall into one of the following groups:

No breach

If no breach has occurred or the breach is of such a minor nature that it is not to be investigated further, in this situation the case will be closed and the complainant will be informed of the decision.

A potential breach has occurred

In many cases it is not possible to come to an immediate conclusion as to whether or not a breach of planning control has occurred. This is particularly evident in relation to complaints regarding a material change of use. In these cases, it is often necessary to carry out additional site visits over a period of time before a decision can be made. It will be explained to the complainant that further investigations and monitoring is required.

Breach identified but works are likely to be granted approval

In this case the enforcement officer will request that a retrospective application is submitted, this allows for a full formal assessment to be carried out on the development and the statutory consultation period will apply. When a retrospective application is not submitted the development will be unauthorised and this will be registered as a land charge. The complainant will be advised of the outcome.

Breach identified and is not acceptable

In cases where it is considered that permission is unlikely to be granted, we will ask for the use to cease or the unauthorised development to be removed. A suitable period of time will be given depending on what needs to be done.

Immunity from enforcement action

In this case a breach has been identified but has been substantially completed for four years or more. In the case of an unauthorised change of use from a building to a dwelling-house this must have been in place for four years or more. In the case of an unauthorised change of use to a building or piece of land this must have been in place for ten years or more. In the case of a breach of condition the breach must have been in place for ten years or more. In these cases officers will request that a Certificate of Lawfulness is submitted.

When a breach occurs the level of harm is assessed to determine if formal enforcement action is taken. Harm can be caused through a number of factors including:

• adverse impact on visual amenity due to poor design or inappropriate materials;
• loss of protected trees or damage to listed buildings;
• adverse impact on residential amenity;
• noise, nuisance or disturbance from the operation of a business.
• untidy land and buildings in a poor condition.

It is usually considered inappropriate to take formal enforcement action against a trivial or technical breach of planning control which causes no harm to the local amenity. In these cases, the complaint may not be ‘expedient’ to pursue.
 

If the council has not been successful in securing the submission of a valid planning application, remedial actions have not been carried out or if negotiation fails to resolve the problem, the enforcement team has a number of tools it can use to obtain information or remedy the breach which can include:

• Planning Contravention Notice

To secure information on the ownership of land and the activities taking place. Non-compliance with the requirement of the notice is an offence.

• Section 330 Notice

To obtain information on the ownership and activities taking place. It usually has a 21 day compliance period and non-compliance is an offence.

• Breach of Condition Notice

Can be served where there has been a failure to comply with a condition attached to a grant of planning permission. There is no appeal process but usually a minimum of 28 days are given for compliance. The notice should specify the steps to be taken and non compliance is an offence. Non compliance is an offence.

• Enforcement Notice

This is served where a breach of planning control has caused harm to the environment or local amenity and it is considered expedient to take formal action. The notice is served on landowners and other interested parties and comes into effect 28 days after it is served. There is a right of appeal within this time although if one is not lodged the remedial works set out in the notice have to be undertaken within the required timescale. Failure to comply is an offence.

• Stop Notice

This can only be issued when an enforcement notice has been served and it is considered that the breach needs to cease before the expiry of the time for compliance. It can take effect immediately but normally after 3 days and failure to comply is an offence. If an appeal against the link enforcement notice is allowed there can be costs implications due to loss of income etc caused by the service of the stop notice.

• Temporary Stop Notice

This is served when urgent action to stop a breach of planning control occurring/continuing is required. It takes immediate effect and is only valid for a maximum of 28 days but this quickly avoids the problem continuing and gives the opportunity for another form of notice to be served.

• Section 215 Notice

This is served on the owner or occupier of land the condition of which is considered to be affecting the public amenity of the area. It sets out the works required to make the land/building acceptable and a timescale for undertaking the works. An appeal will be heard in the Magistrates Court. If the notice is not complied with this is an offence and the works can be done in default with a charge held against the site.

• Section 225 Notification

Removal or obliteration of posters or placards. Notification of the requirement for removal  of posters and placards can be given under section 225 of the Town and Country Planning Act and if it is not complied with within the required timescale, that could only be a matter of days, the offending sign could be removed

• High Hedge Remedial Notice

This notice can be served on a person responsible for a high hedge if it is considered to be adversely affecting the reasonable enjoyment of a neighbour’s home and garden. It sets out what is required to be done to the hedge and a timescale for compliance. Failure to undertake the required works is an offence.
 

• Listed Building Enforcement Notice

This should be served when the demolition of a listed building or works that affect its character have been undertaken without the benefit of listed building consent or contrary to a condition attached to a listed building consent. Unauthorised works to a listed building is an offence and can lead to prosecution without the service of an enforcement notice.

• Injunction

This may be served in the Courts to restrain any actual or anticipated breach of control. It can be sought at any time during enforcement action but usually when an enforcement notice is being ignored. Failure to comply leads to contempt of court and can lead to imprisonment.

• Direct Action

Is when the council goes on to the land where the breach is occurring and undertakes remedial work with the costs recovered from those responsible for the breach. This can be used with regard to unauthorised adverts but otherwise is normally only used in exceptional circumstances where no other course of action has been successful.

• Prosecution

There is a right of appeal to some of the notices listed above and this effectively suspends the requirements of the notice. However failure to comply with a notice is an offence and prosecution should be pursued where the council has sufficient, admissible and reliable evidence that the offence has been committed and there is a realistic prospect of a conviction. If enforcement is going to be effective this course of action must be pursued when appropriate. To determine whether prosecution is appropriate the council will assess the case in accordance with the tests set out in the Code for Crown Prosecutors.

The council is required to have a register available for public inspection that contains copies of all of the following type of notices served:

• Enforcement Notices
• Listed Building Enforcement Notices
• Breach of Condition Notices
• Temporary Stop Notices
• Stop Notices

At present we are in the process of transferring the register into an electronic format so they will be available to view on the council’s website.

To view the register please contact the enforcement team directly on 0345 600 6400 or by email at planningenforcement@northumberland.gov.uk