Planning enforcement charter
We have a range of enforcement powers available and will need to decide, in each case, which power is best suited to dealing with a particular situation. If we need to take formal enforcement action, we will usually serve an enforcement notice, a breach of condition notice or, in urgent or very serious cases, a temporary stop notice or a stop notice, on the person responsible for breaking the condition as well as the landowner.
Types of notice
Breach of condition notice
This is used to enforce the conditions applied to any planning permission. It applies from the date it is served. We may use this instead of an enforcement notice (see below), and we can serve it on any person carrying out the development or any person who controls the land. There is no right of appeal. Not keeping to a breach of condition notice is an offence and can result in us deciding to prosecute, with a fine of up to £5000. Or, we can serve a fixed-penalty notice for each step that has not been taken, with a fine of up to £300 for each notice.
This must be served on the current owner, occupier and anyone else with an interest in the property. This is generally used to deal with unauthorised development, but can also apply to breaking planning conditions. There are similar notices and powers to deal with listed buildings (see below), and advertisements. An enforcement notice will say: what steps must be taken to sort out the problem and when they have to be completed. This amount of time has to be reasonable and will depend on the amount of work that needs to be carried out. If you do not keep to an enforcement notice within the time shown, it is an offence, and may lead to a fine of up to £50,000 in the Sheriff Court.
Listed building enforcement notice
This must be served on the current owner, occupier and anyone else with an interest in the property. The procedures are similar to those outlined above. The notice must describe the steps to be taken to sort the problem out and a final date for doing so. If you do not do what the notices asks by the date shown, it is an offence. There is the right of appeal to Scottish Ministers against the notice. Breaking listed building control is a serious matter. It is a criminal offence to carry out unauthorised work to demolish, significantly alter, or extend a listed building. In certain circumstances, this can lead either to an unlimited fine or imprisonment.
This is used in urgent or serious cases where unauthorised activity must be stopped, usually because of public safety. When we serve a stop notice, we must also issue an enforcement notice at the same time. There is no right of appeal against a stop notice and if you do not keep to the notice, it is an offence. You can though appeal against the enforcement notice. If a stop notice is served without a good reason, or an appeal against the enforcement notice is successful, we may face claims for compensation. As a result, we need to carefully assess when to use stop notices.
Temporary stop notice
We can use this to stop an activity that will damage the environment or local amenity and there is a clear and immediate need to stop it. It can only be used to stop the activity for up 28 days. If the activity is to be stopped for longer, we will have to serve some other form of notice. We do not need to serve an enforcement notice at the same time and there is no right of appeal. If you do not keep to the notice, it is an offence.
Planning contravention notice
This is used to gather information about activities on land where we suspect that planning control has been broken and is normally served at the beginning of the enforcement process. It is served on the owner or occupier, on a person with any other interest in the land or anyone who is carrying out operations on the land. That person will have to provide information about operations being carried out on the land and any conditions or limits applying to any planning permission already granted. If you do not keep to the notice within 21 days of it being served, it is an offence and can lead to a fine in the courts.
Notice under section 272 (of the Town and Country Planning (Scotland) Act 1997)
This provides limited powers to gather information on interests in land and how land is used. If you do not provide the necessary information it is an offence.
Amenity Notice under section 179 (of the Town and Country Planning (Scotland) Act 1997)
This allows planning authorities to serve a notice on the owner, lessee or occupier of land which is negatively affecting the area. The notice sets out the action that needs to be taken to sort the problem out within a certain period.
Notice under section 33A (of the Town and Country Planning (Scotland) Act – introduced by section 9 of the 2006 Act)
This allows us to serve a notice saying someone needs to make a planning application for a development that has already taken place. We can use this to encourage you to send us an application that we think might be granted with some conditions that would make the development acceptable.
Interdict and interim interdict
This is an order made by the courts and is used to stop or prevent a problem with planning control. Court proceedings can be expensive and we normally only apply for orders in serious cases or where enforcement notices have been ignored in the past. However, we can get an order in relation to any situation where control has been broken without having to use other powers first. Breaking an order is treated as a contempt of court and carries heavy penalties.
Powers to enter land
We have powers to enter land to see if planning control has been broken; check if you have kept to a formal notice; and check if a problem has been dealt with satisfactorily. This power applies to any land and may involve officers entering land next to the site where the problem took place.