Where breaches of planning control or other problems occur these can usually be resolved by negotiation (informal action) leading to resolution of the breach or the submission of a planning application to regularise the breach. However, formal enforcement action is taken where there is a clear planning contravention and such action is necessary.
Enforcement of planning decisions is an essential element of a development control service. Development and uses of land proceed sometimes in breach of a planning permission or without permission at all. In these circumstances the situation should be brought under control either by negotiation or formal enforcement action.
There is no statutory duty to enforce against all breaches of planning control. Enforcement is a discretionary process, recognising that there may be more than one solution to a problem. However, formal powers are available to enable unauthorised developments and breaches to be addressed.
There are several agencies with enforcement powers over various aspects of mineral and waste management developments including:
the Environment Agency - pollution control
the Environmental Health Authority - statutory nuisance
the Health and Safety Executive - site management
Complaints about a development, use, operations or management will be directed to the appropriate authority to respond.
Breaches of planning control concerning non-mineral and waste developments including for the County Council’s own development will be referred to the appropriate district council. Whilst there is no regular monitoring of County Council developments the Council seeks to ensure that it undertakes its responsibilities in relation to implementing planning permissions. The enforcement procedures apply equally to Hampshire County Council projects as with any other development.
An Annual Report is produced for minerals and waste planning. The report contains information on the progress of the development of minerals and waste sites. It also includes information on complaints received and enforcement. The annual report contains information in such a format as to enable year-on-year comparisons to be made. Progress on statutory enforcement action taken by the County Council is regularly reported to the Regulatory Committee.
In the event of a breach of planning control taking place:
where investigations determine that the breach is outside the scope of planning control, it will be referred to the appropriate agency;
where the nature of the breach overlaps with responsibilities of another agency, the County Council will work in partnership with that body to resolve the matter;
where the breach is within the scope of planning control, the County Council will first seek to resolve it through negotiation.
Planning Policy Guidance Note 18 (PPG18) sets out guidance on how planning authorities should proceed with enforcement. Formal enforcement proceedings will be taken after alternatives to resolve a problem have been pursued, or where it is necessary to take immediate action to prevent serious harm or irreparable damage occurring. The County Council does not condone breaches of planning control however, it will take action commensurate with the scale and nature of the breach. If a breach of planning control is substantiated, Hampshire County Council will:
advise the developer and/or landowner of the situation, in writing, within 5 working days
advises the action required to correct the breach
advise on the timescale within which the action should be taken.
As part of this procedure, Hampshire County Council may serve a Planning Contravention Notice to gather information and to allow the developer or landowner to undertake remedial measures before formal enforcement action is started.
Subsequent events are monitored to ensure compliance and the relating conclusions reported to the complainant. However, enforcement is a legal process and details of action taken may remain confidential until concluded.
Planning Contravention Notice
This is served on landowners/operators to obtain information about a suspected breach of planning control. The information provided is used to decide whether further action is required. Failure to reply to the notice can lead to a fine of up to £1,000 upon conviction.
Breach of Condition Notice
This requires an operator/landowner to comply with planning permission conditions which they have breached. There is no right of appeal and failure to comply could result in prosecution and a £1,000 fine for each offence.
This is used when a serious breach of planning control has occurred. The person served with the notice has 30 days to appeal against the notice. An appeal is heard by an independent Inspector. If the appeal is dismissed or no appeal is made then failure to comply with the requirements of the notice will usually result in prosecution and the maximum fine is £20,000 for each offence.
A stop notice is issued in conjunction with an enforcement notice to require a particularly harmful activity e.g. waste disposal, to cease. There is no right of appeal but if an enforcement notice appeal is made then the merits of the stop notice may be considered. Non compliance with a stop notice is an offence which carries a maximum fine of £20,000.
Temporary Stop Notice
A temporary stop notice requires a particularly harmful activity e.g. waste disposal, to cease temporarily for a period of 28 days. Non compliance with a temporary stop notice is an offence which carries a maximum fine of £20,000.
This is sought in the County or High Court to restrain persons from carrying out or continuing to breach planning controls. The contravention of an Injunction Order is a Contempt of Court and the Court can levy an unlimited fine or impose a custodial sentence.
As a last resort if a person continues to or cannot comply with the requirements of a notice the County Council can enter the land and undertake works in compliance with a notice. The cost would then be charged to the landowner, but in many cases would have to be borne by the Council at least in the short term.