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Chiltern District Council
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6. How we will investigate an alleged breach of Planning Control

6. HOW WE WILL INVESTIGATE AN ALLEGED BREACH OF PLANNING CONTROL

6.1     We will acknowledge all requests in writing, by email where we have been provided with an email address, within five working days of receiving it, and we will give the requester the name and contact details of the planning enforcement officer who will be involved.

6.2     At the same time we will write to the owner/occupier or person believed to be responsible for the alleged breach of planning control alerting the person(s) to the potential breach of planning control and requesting that contact is made in order to arrange a site visit.

6.3            1. Urgent Priority Cases we will endeavour to visit or seek to make contact with the person responsible for the works within one day of receiving the request if it is a working day, or on the first working day thereafter.

                  2. High Priority Cases we will endeavour to visit or seek to make contact with the person responsible for the works within five working days of receiving the request.

                  3. Medium Priority Cases we will endeavour to make contact with the person responsible for the works within five working days of receiving the request and a site visit will be arranged as necessary as soon as practicable thereafter.

                  4. Low Priority Cases we will endeavour to make contact with the person responsible for the works within ten working days of receiving the request and a site visit will be arranged as necessary as soon as practicable thereafter.

6.4     We will investigate by looking at records and visiting the site. We may also need to seek further information from the requester or the person carrying out the unauthorised work. We will refer specialised tree issues and matters relating to works to Listed Buildings to specialist officers.

6.5     Firstly we have to check to see if the works constitute "development" for planning purposes. As set out in Section 2 above "Development" is defined in Section 55 of the Town and Country Planning Act 1990. If there is no "development" then there is no breach of planning control and no further action we can take under the planning legislation and we will therefore close our file.

We will write to you to explain this.

6.6     If it is established that works have occurred the types of questions which we will ask include:

  • Is planning permission required?
  • Has permission already been given? (most planning permissions can be taken up at any time within 3 years from the date permission was granted, and once partially put into action, there is no time limit on final completion).
  • Is the matter serious enough to warrant action?
  • Where planning permission has not been granted, are the activities generally acceptable in planning terms?
  • Where the activities or development are undesirable yet controllable by the District Council's planning enforcement power, what is the most appropriate action to take?

        A similar process will be followed in respect of alleged breaches of planning control relating to Advertisements, Works to Listed Buildings, Works to Protected Trees, in terms of asking:

  • Is consent required?
  • Has the appropriate consent been obtained?
  • Is the matter serious enough to warrant action?
  • Where consent has not been granted, is further action necessary?
  • Where the activities or development are undesirable yet controllable by the District Council's planning enforcement power, what is the most appropriate action to take?

6.7     If there is a breach of planning control, we will consider what action to take. The formal action that we can take is explained below. The action we take will have regard to the Law, National Planning Guidance, and to our own Development Plan policies. It is important to understand that the Council must consider whether it is expedient to take action, and if it does, the action must be commensurate with the scale of the breach.

6.8     Because the Council's enforcement powers are discretionary, and it has to be able to demonstrate that any enforcement action is expedient and proportionate, the emphasis will be on endeavouring to negotiate a resolution with those responsible for breaches of planning control in the first instance.

6.9     In deciding the most appropriate type of action and expediency in planning matters the Council must consider the effects of the breach and what harm is caused to the amenity of the area. This consideration will also include forming a view as to whether planning permission would be likely to be forthcoming if applied for, the available evidence and any claims of immunity. The main issue should be whether, if left un-addressed, the breach of planning control would unacceptably affect public amenity or the existing use of land and buildings meriting protection in the public interest. This will involve Human Rights considerations of both the landowner and those affected by the unauthorised development. Complainants should therefore be aware that, for a variety of reasons, it may not be expedient to take enforcement action, even if a breach of planning control is proven.

6.10     There may be very minor breaches which cause no harm. In these cases it would not be expedient to take enforcement action as stated in Government Guidance in PPG 18.

6.11     We may decide not to pursue an enforcement investigation, even if there is a clear breach of planning control, because it is 'not expedient' to take action. This might be because although the breach is more than just a minor or technical breach, the harm it causes is not significant, and in our opinion formal action would not be in the public interest. In reaching such a decision we must balance the harm being caused against the likely success of any formal action, the availability of resources, and other cases that might be causing a greater level of harm but whose progress might be delayed as a result. In these circumstances we will close the case file and notify everyone who has been involved in the investigation. We will also, without prejudice to the outcome, notify the owner that they can make an application to seek regularisation.

6.12     Where it proves necessary to resolve a significant breach of planning control the Council's Planning Committee may be asked to consider giving its authority to issue a statutory notice, prosecute and/or carry out works in default. In urgent cases, authorisation may be sought for formal action, in line with the Council's scheme of delegation. In this instance the matter will be reported to the next available meeting of the Planning Committee.

6.13     The choice of action in each case will therefore be:

  • No further action - No breach has occurred.
  • Breach is immune from any Planning Enforcement Action, the works or use are "Lawful" (see para 2.12 above)
  • Not expedient to take action. This is a trivial or technical breach. There is no harm to amenity or environment,
  • Regularisation - Cessation of use/works, Retrospective Application, Discharge of Conditions.
  • Formal Action - Enforcement or other formal notice, Prosecution, Injunction, Works in Default

6.14     Where a breach of planning control has been identified in general the following approach will be adopted:

  • Step 1

    • Give advice e.g. informal letter,
    • Seek to negotiate allowing an opportunity for cessation of works/use or reinstatement of land,
    • Invite a planning application if permission may be forthcoming, non-material minor amendment or to discharge of conditions.
  • Step 2

    • Formal letters, written warnings,
    • Issue a Planning Contravention Notice in conjunction with Legal Services staff to obtain more information.
    • Request Lawful Development Certificate, information to establish development immune from enforcement action.
  • Step 3

    • Where a breach of planning control has been identified and no action has been taken to address the breach it will be necessary to consider formal action in the form of formal Enforcement Notices and Stop, or Temporary Stop Notices. Where formal action is taken then every effort will be made to explain to the recipients what is required of them, the consequences of non-compliance and the available rights of appeal
    • Where an enforcement notice has not been complied with this will include prosecution proceedings or direct action.

6.15     In Urgent or High Priority cases, Steps 1 and 2 may be omitted.

6.16     At each stage of our investigation we will update the person(s) who have drawn the matter to our attention in writing, should you not hear from us then please contact the officer dealing with the case.

6.17     Planning issues can evoke frustration and it is everybody's interest for the matter to be resolved as quickly as possible. However, every case is potentially different and a timescale target for resolving cases is not an appropriate tool for monitoring progress. One of the main frustrations of customers is not being kept informed of what officers are doing or how the case is progressing towards a resolution.

6.18     In many cases due to protracted negotiations, failure to access property or make contact with the parties involved, often there is nothing to report and therefore parties believe no action is being undertaken. This is not the case. The complainant will be kept informed as regularly as resources allow.

  • We will provide an initial response to all cases, other than low priority, with an explanation of our findings within 28 days, low priority may take longer up 42 days

        Thereafter potential stages of notification, which will vary dependent upon the nature of the case:

  • After the site inspections advising of the Officer's findings and what the next actions will be
  • That the investigation stage is complete and the case has been closed. A detailed reason behind the closing of the case will be given
  • That formal action is being considered and a report is being prepared. Advice is given as to the decision-making process and the timescale involved
  • That no action has been agreed and the case has been closed. A detailed reason behind the closing of the case will be given
  • That action has been agreed by the Council. Advice is given as the next stages and timescales involved and the potential variations in the process and outcomes
  • That a Notice has been served, the content of the notice and compliance period.
  • If an appeal is lodged.
  • The outcome of any compliance site inspections following the Notice taking effect, either with or without appeal.