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ENFORCEMENT POWERS

Types of enforcement notices that can be issued for breaches of planning regulations.

Enforcement powers are set out in the Town and Country Planning (Scotland) Act 1997, Listed Building and Conservation Areas (Scotland) Act 1997 and Town & Country Planning (Control of Advertisements) (Scotland) 1984.

Further guidance is set out in: 

Types of Notices

There are a number of different types of notice that the Council has power to serve under the Planning Acts and related legislation. A notice can require the contravener to remedy the breach of planning control or where more urgent action is required the contravener must cease activity with immediate effect.

  • Enforcement Notice – This notice is used to deal with unauthorised development and breaches of planning conditions. An enforcement notice will specify; a notification period before it comes into effect (a minimum of 28 days), the steps that must be taken to remedy the breach and a compliance period by the Council. The compliance period must be reasonable and reflect the amount of work that needs to be undertaken. There are limited grounds of appeal to Scottish Ministers against enforcement notices and, if an appeal is made, the notice is suspended until the decision is reached. Failure to comply with the terms of an enforcement notice within the time specified is an offence, and may lead to the imposition of a fine of up to £20,000 in the Sheriff Court or direct action.
  • Breach of Condition Notice – This type of notice is used to enforce the conditions applied to any planning permission. It comes into effect 28 days after being served. It may be used as an alternative to an enforcement notice and is served on any person carrying out the unauthorised development and/or any person having control of the land where the development is being carried out. There is no right of appeal against this type of notice. Contravening a breach of condition notice is an offence and may lead to the imposition of a fine of up to £1,000.
  • Stop Notice – This is served in urgent or serious cases where an unauthorised activity must be stopped to safeguard amenity or public safety and/or to prevent serious or irreversible harm to the environment and the surrounding area. When a stop notice is served, the Council must also issue an enforcement notice. The stop notice takes effect between 1-3 days after it has been served and will outline the steps which must be taken to comply with the notice. There is no right of appeal against a stop notice and failure to comply with its terms is an offence, though 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 stop notice may be quashed and the Council may face claims for compensation.
  • Listed Building Enforcement Notice – The Council may serve a listed building notice where unauthorised works have been, or are being, undertaken to a listed building. This notice must be served on the current owner, occupier and anyone else with an interest in the property. The notice must specify the steps to be taken to remedy the breach and a compliance period. Failure to meet the terms of the notice by the date specified is an offence. There is a right of appeal to Scottish Ministers against the notice. It is a criminal offence to execute or cause to be undertaken any works to demolish, alter, or extend a listed building which would affect its character as a building of special architectural or historic interest, unless the works are authorised. The legislation also extends to the interiors as well as the exteriors of statutory listed buildings. Unlike a breach of planning control unauthorised works to listed buildings can never become immune from enforcement action.
  • Advertisement Enforcement Notice – This notice may be served by the Council where it appears to them that an advertisement has been displayed without the necessary consent, or without compliance with a condition or limitation attached to consent. The notice is served upon the owner, lessee and occupier of the land and on any other person known to the Council to be displaying the advertisement. The notice will require specific steps to be taken within a specified period to remove the advertisement, to restore the land to the condition it was in before the display began or to secure compliance with the condition or limitation. In addition the notice may specify, as an alternative, steps to be taken to bring the display up to an acceptable condition. Where any of the steps required by the notice have not been taken within the specified period the Council may enter the land and take those steps and recover its expenses from the owner or lessee of the land. Any person upon whom a notice of this type is served may appeal in writing to the Scottish Ministers. The siting or erection of an unauthorised advertisement is an offence, with a current maximum fine of £1000. In cases where an advertisement has been placed on Council owned land or property without consent the advert may be removed and destroyed. Unlike a breach of planning control a breach of advertisement control can never become immune from enforcement action. 
  • Advertisement Discontinuance Notice – Some advertisements may be displayed without the requirement for advertisement consent and are therefore lawful. Previously consented advertisements can remain on display beyond the 5 year consent period. However, the Council may serve a notice requiring the discontinuance of the display of that advertisement. 
  • Notice Requiring Application for Planning Permission for Development Already Carried out (Section 33A Notice) – Where the Council considers that a development which does not have planning permission may be acceptable (i.e. they consider that it might be granted planning permission) they may issue a notice requiring the landowner or developer to submit a retrospective planning application. This application will be considered on its own merits and handled in the same way as any other planning application. Issuing such a notice does not guarantee that permission will be granted. The Council may, on consideration of the application, decide to refuse the application, or to grant permission subject to conditions to make the development acceptable. Failure to comply with the terms of a Section 33A notice may result in further enforcement action.

OTHER POWERS/NOTICES OPEN TO USE BY ARGYLL AND BUTE COUNCIL 

  • Planning Contravention Notice – The Council may issue a planning contravention notice on the owner or occupier of any land, on any other person with an interest in such land, or on a person who is carrying out operations on the land in order to obtain information about activities where a breach of planning control is suspected. Those who receive a planning contravention notice are required to provide specified information about operations being carried out on the land. Failure to comply with the notice within 21 days of it being served is an offence. 
  • Fixed Penalty Notices – These provide the Council with an alternative process, in addition to the option to seek prosecution, to address situations where a person has failed to comply with the requirements of an enforcement notice or a breach of condition notice. By paying the penalty imposed by a fixed penalty notice the person will discharge any liability for prosecution for the offence. They will not, however, discharge the obligation to comply with the terms of the enforcement or breach of condition notice and the Council will retain the power to take direct action to remedy the breach and recover the costs of such work from that person. This noticed may be increasingly used as in intermediary option prior to taking direct action or in situations where a prosecution is unlikely to be taken up by the Procurator Fiscal.
  • Temporary Stop Notices – This is used to require the immediate halt of an activity which, in the Councils view, would cause significant damage to the environment and/or local amenity. A temporary stop notices should only be used where the Council consider that there is a clear and immediate need for such action. Temporary stop notices differ from stop notices in that they can be served with immediate effect and do not require to be served in conjunction with an enforcement notice. The notices ceases to have effect after 28 days after it has been displayed, unless a shorter period is specified in the notice, or the notice is withdrawn by the Council before it ceases to have effect. A temporary stop notice may however be followed by further enforcement action such as an enforcement notice and stop notice. There is no statutory right of appeal again a temporary stop notice. It is an offence to contravene a temporary stop notice.
  • Listed Building Repairs Notice – This can be served by the Council on the owner of a listed building at any time if the owner fails to keep a listed building in a reasonable state of repair. Compulsory purchase can be initiated two months after service of a repairs notice. 
  • Listed Building Urgent Works Notice – where it appears to the Council that any works are urgently necessary for the preservation of a listed building, they may execute the works that are required to any unoccupied part of the listed building after giving no less than 7 days written notice to the owner. The Council may give notice to the owner of the building requiring them to pay the cost of the works. 
  • Land adversely affecting the Amenity of a Neighbourhood Notice (Section 179 Notice) – The Council may serve a notice on the owner, lessee or occupier of the land if it appears that the amenity of the area is adversely affected by the condition of the land or buildings. The notice sets out the steps to be taken to address the adverse effect of the condition of the land or buildings within a specified period.

FURTHER CONTROLS 

  • Tree Preservation Order and Trees in Conservation Areas – Trees within a Conservation Area or subject to a Tree Preservation Order are protected in law and it is an offence to cut down, uproot, wilfully destroy a tree or wilfully damage, top or lop a tree in such manner as to be likely to destroy it without the consent of the Planning Authority.
  • Interdict and Interim Interdicts – An Interdict is imposed by the Courts and is used to stop or prevent a breach of planning control. Court proceedings can prove costly and Interdicts are normally only sought in serious cases or where Enforcement Notices have been ignored in the past. 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 within the time specified can result in the Council carrying out the specified work. The Council can seek to recover any costs it incurs from the land owner.
  • Power to Require Information as to Interest in Land (Section 272 Notice) – This provides limited powers to obtain information on interests on land and the use of land. Failure to provide the information required is an offence.

Further enforcement powers may be made available to the Council due to changes in legislation (such as the Historic Environment Act) and these will also be considered for use depending on the circumstances and merits of each individual case.

OTHER POWERS 

  • High Hedges: The High Hedges Act makes a range of provisions relative to high hedges in Scotland, that oblige the Council to act as arbiter where all other avenues to resolve a high hedge dispute have been exhausted.

OTHER COUNCIL DEPARTMENTS AND AGENCIES WHICH MAY BECOME INVOLVED

  • Building Standards: For example where a dangerous or structurally damaged building is involved or where unauthorised works are being carried out to or in a building the relevant complainants may be directed to Building Standards who may take action under The Building (Scotland) Act 2003.
  • Regulatory Services: Failure to comply with conditions relating to private water supplies, public safety, health issues, obtaining appropriate licenses or certificates may require investigation from colleagues within Regulatory Services. 
  • Streetscene: Where a reported breach involves Council land or property, Council Officers from Streetscene department may remove unauthorised development/advertisements acting as landowner. 
  • Roads Authority/ Trunk Roads Authority: At times it becomes apparent that an enforcement case is not a planning issue but a Roads or Trunk Roads issue. In cases like these the enforcement case is closed and the relevant complainant informed, the information is then passed to a Roads Technician to progress. The Roads Authority use a series of relevant legislation including the Roads (Scotland) Act 1984  which includes power to remove unauthorised advertisement located within the roads corridor, falling under the control of the Roads Authority.
  • Procurator Fiscal: If it transpires that the Council considers an offence has taken place it is solely a matter for the Procurator Fiscal to decide on whether both sufficient evidence has been provided, and whether a prosecution would be in the public interest. Such matters are not within the control of the Council. 
  • Scottish Environmental Protection Agency (SEPA): SEPA deal with issues relating to Waste Management Regulation and Japanese Knotweed and more information can be found at http://www.sepa.org.uk/
  • Police Scotland: The Police Scotland have the power to prosecute all criminal offences in relation to planning control and that in some high priority cases the council has the discretion to refer the matter to them to initiate criminal proceedings.

ENFORCEMENT NOTICE APPEALS

There is no right of appeal against some specific notices such as a Planning Contravention Notice, Breach of Condition Notice, Section 272 Notice and Section 33A Notice.

Where appeal rights exist, appeals are submitted to and considered by Scottish Ministers. In almost all cases appeals are dealt with by Reporters from the Scottish Government Directorate for Planning and Environmental Appeals. (DPEA)

Such appeals are usually determined through the submission of written statements from both parties and a site inspection, although some cases are determined through a hearing or public local inquiry. Appeals must be made before the date the notice takes effect which is detailed on individual notices, and is normally 28 days after the notice is served.

Appeals are made to:

  • Directorate for Planning and Environmental Appeals 4 The Courtyard
  • Callendar Business Park Callendar Road
  • Falkirk FK1 1XR

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