Planning Enforcement Policy Statement

INTRODUCTION

Hart District Council considers that the integrity of the development control process depends on its readiness to take effective enforcement action when it is appropriate. Public acceptance of the development control process is quickly undermined if unauthorised development, or other breach of planning control, which is unacceptable on planning merits, is allowed to proceed without any apparent attempt to intervene before serious or irreversible harm to amenity occurs.

The policy was first published in May 1997. Since then the Council has signed up to the 'Enforcement Concordat' produced by the Cabinet Office better regulation unit. This revised version takes the advice in the concordat into account.

The issues to be addressed within this Enforcement Policy Statement are as follows:

• Aim of the Enforcement Policy
• Principal Legislation relevant to the Policy
• Policies applicable within Hart District
• Type and incidence of enforcement problems
• Resources available for enforcing planning control
• Working with others
• The Council's approach to non-compliance
• Procedures for investigating enforcement complaints
• Targets for performance
• Tools available to enforce planning control
• Human Rights Issues
• Rules Governing the Conduct of Officers
• Review of the Enforcement Policy Statement

AIM OF THE ENFORCEMENT POLICY

To ensure effective compliance with legislation, planning policies for the District and planning permissions that have been granted, having regard where appropriate to public health risks, danger to employees, local planning policies and the amenities of local people and business whilst minimizing the burden to local business, residents and to the Council.

PRINCIPAL LEGISLATION RELEVANT TO THE POLICY

• Town and Country Planning Act 1990
• Planning (Listed Building and Conservation Areas) Act 1990
• Planning (Hazardous Substances) Act 1990
• Planning and Compensation Act 1991
• Planning and Compulsory Purchase Act 2004
• The Town and Country Planning (Use Classes) Order 1987
• The Town and Country Planning (Control of Advertisements) Regulations 1992
• Town and Country Planning (General Development Procedure) Order 1995
• Town and Country Planning (General Permitted Development) Order 1995
• Countryside Hedgerow Regulations 1997

PLANNING POLICIES APPLICABLE WITHIN HART DISTRICT

Hart District Council aims to uphold the highest standards of development for the district.

General principles are set out in national planning policy guidance (PPG's), planning policy statements (PPS') and circular advice.

Planning policies applicable to the district are those contained in the Development Plan, which currently comprises the Hampshire County Structure Plan 1996 - 2011 and the Hart District Local Plan (Replacement) 1996-2006 and First Alterations adopted 22/6/06.

In addition regional planning guidance set out in RPG9 is relevant.

In support of the Development Plan there is also a wide range of Supplementary Planning Guidance all of which will be taken into account where appropriate to any particular case.

TYPE AND INCIDENCE OF ENFORCEMENT PROBLEMS

The Council received 335 planning enforcement allegations in the financial year 2007 - 2008. Many of these are dealt within a relatively short period of time, as there is either no breach of planning control taking place, or the enquiry relates to minor technical breaches of planning control that can be resolved without formal action.

A variety of breaches occur throughout the district from unauthorised development, breaches of planning conditions and unauthorised changes of use, to unauthorised advertisements, works to listed buildings and to protected trees.

RESOURCES AVAILABLE FOR ENFORCING PLANNING CONTROL

Planning Services has a dedicated enforcement team comprising of a Principal Planning Officer as the Team Leader, Two Planning Enforcement Officers, and an Administrative Officer.

Legal support is given by the Solicitor to the Council.

WORKING WITH OTHERS

The Planning Enforcement team works constructively and in collaboration with staff and members of the Council both within the planning service and other sections and units of the Council. In particular, considerable support and assistance is provided by Building Control, Environmental Health, Landscape and Highways teams.

The Council also works with the County Council, neighbouring authorities, other organizations and government bodies where this is appropriate.

The Council particularly welcomes the help and support of Parish Councils. It is intended to maintain and enhance the close liaison that exists between the Enforcement Service and the Parish Councils within Hart in the monitoring of planning permissions. The exchange of information and advice, and requests for assistance between the 2 parties should occur as a matter of course.

The District Council seeks to work constructively with Parishes. It will also accept the assistance of Parish Councils in monitoring the progress of new developments, and breaches of control in their areas where Parish Councils wish to participate.

THE COUNCILS APPROACH TO NON-COMPLIANCE

Enforcement powers are used as a means to an end rather than for their own sake.

The Council's approach to enforcement is related to the seriousness of the circumstances in each case and the potential risk to health, safety and public amenity.

The Council should be reasonable, equitable and proportionate in its use of enforcement powers while being determined to protect the quality and visual amenity of the District in the public interest.

Where in the opinion of the Council a minor breach of legislation occurs and the business or other party is prepared to put things right a written warning would normally be given. However, formal action would be taken if the written warning is ignored in accordance with the approach set out below. Where in the opinion of the Council a serious breach of legislation occurs the Council would take appropriate action to prohibit activities, remove unacceptable structures or effect necessary improvements.

In both cases reference would be made to the specific legislation invoked.

Guidance and advice would be given so that those who attract or report an enforcement investigation know precisely what is expected from them and what they can expect from the Council. A clear distinction would be made when requesting remedial work between what is desirable and what must be done.

Legislation and adopted and emerging planning policy should be enforced in a fair, equitable and consistent manner but with care taken to ensure that the merits of any particular case are fully explored.

The emphasis is on persuasion, influence and education to secure the aims of legislation and planning policy, but swift and firm action is to be taken against those who flout or ignore planning controls.

Priority is given, where resources permit, to pursuing the Councils planned work, e.g. monitoring planning conditions and legal agreements.

Priority on planned and responsive (i.e. complaints) work is given to those activities/works that give rise to the most serious risk of harm to health, safety or public amenity or where hazards are poorly controlled. On occasions this means that responsive work has a higher priority than planned work.

The Council would confirm in writing or by telephone its satisfaction if, following an investigation, it finds no breach of control.

PROCEDURES FOR INVESTIGATING ENFORCEMENT COMPLAINTS

This section describes the handling of planning enforcement complaints from receipt through to final resolution. It follows advice given in Planning Policy Guidance 18 Enforcing Planning Control (PPG18), Circular 10/97 and Practice Advice Note No.6 produced by the Royal Town Planning Institute.

Receipt of Complaints - When received a complaint is registered on the dedicated enforcement database. New complaints are only accepted if accompanied by a completed Complaint form, unless they relate to unauthorised development that is either a criminal act or a danger to public safety. In these circumstances, anonymous complaints (by telephone or in writing) are also investigated. For all other anonymous complaint, investigation of the case will be at the discretion of the Council.

Confidentiality - The Council endeavours to keep the name and address of all complainants confidential. However, if a matter proceeds to appeal or to court, their evidence and details may be required to secure a successful outcome. Complainants would be contacted to confirm whether they wish their evidence to be used before their identity is revealed.

Prioritisation - The Council will give the highest priority to those breaches causing unacceptable harm to public amenity or buildings and trees meriting protection in the public interest. Each complaint will be given a priority by the Enforcement Team Leader.

Communication - The Council acknowledges in writing the receipt of all complaints, unless they are anonymous. The Council keeps complainants up to date with progress on a case under investigation within 4 weeks of an acknowledgement, and as and when there are developments to report.

All correspondence in respect of enforcement cases should be addressed to the officer dealing with the case, in order to expedite processing of any investigations.

The Council writes to the complainant and the party undertaking the breach of control confirming whether there has been a breach of planning control, indicating an initial assessment of the scale of harm to the public interest and setting out what it intends to do together with an anticipated timetable to which it will be working. Where issues are complex and the Council is not able to provide all the information within its target it will instead explain in writing why it has been unable to do so and will advise of the steps it is taking and when a further response can be expected.

TARGETS FOR PERFORMANCE

A letter, or e-mail, as appropriate, acknowledging receipt of a complaint will be sent by 1st class post within 3 working days.

Where the Council is not responsible for enforcing the area of concern it will pass on the complaint to the relevant enforcement agency within 10 working days of receipt of the complaint and will advise the complainant of this.

An initial site visit to investigate an alleged breach of control will be undertaken within 10 working days of receipt of a complaint.

The Ward Member and Parish Council are informed on a weekly basis regarding all outstanding enforcement cases.

85% of enforcement cases will be either closed, reported to Enforcement Sub-Committee or formal action instigated within 8 weeks of receipt of the complaint.

TOOLS AVAILABLE TO ENFORCE PLANNING CONTROL

Investigative Powers - There are 3 powers enabling the Council to requisition information for planning enforcement purposes:

• Section 330 of the Town and Country Planning Act 1990 (The Act)
• Section 16 of the Local Government (Miscellaneous Provisions) Act 1976
• Section 171C of the Town and Country Planning Act 1990 (The Planning Contravention Notice)

In addition officers have powers of entry to secure access to property in connection with enforcement investigations. Section 196A of The Act enables authorized officers to enter land or buildings at any reasonable hour in pursuance of their enforcement duties without a warrant. Twenty-Four hours notice is required, however, before entry may be demanded to a dwelling. Although it is an offence to obstruct the exercise of this right, this power is reinforced by Section 196B, of the act which provides for warrants permitting entry to be made by force. Police support is advised in these rare instances.

Formal Action

• The power to receive and determine retrospective applications to regularize a breach of planning control
• The power to serve a Breach of Condition Notice, where there is a failure to comply with any condition or limitation imposed on a planning permission
• The power to serve an Enforcement Notice where development has taken place without the appropriate consents
• The power to serve a Stop Notice where an Enforcement Notice has been served or a temporary stop notice and the Council considers that the notice should take effect immediately to prevent further substantial harm
• The ability to seek an injunction, in the High Court or County Court, to restrain any actual or expected breach of planning control
• The ability to seek prosecution in Court against persons who have displayed advertisements without the appropriate consent
• The ability to seek prosecution in Court against persons who have wilfully damaged or destroyed a tree protected by a Tree Preservation Order or a tree in a Conservation Area without the appropriate consents
• The ability to seek prosecution in Court against persons who have altered a Listed Building without the appropriate consent
• The ability to take proceedings in Court against persons who fail to comply with a Breach of Condition Notice, Enforcement Notice or Stop Notice
• The power to serve a notice (Section 215 Notice) requiring a landowner to remedy the condition of an area of land or building that is causing a serious injury to the amenity of the locality
• The power to take direct action to clear a site of unauthorised structures and to recover the costs of such action.

Criteria Relating to Prosecution for non-compliance with legislation

Before deciding whether or not to prosecute the following factors will be considered:

• The seriousness of the offence
• The willingness of the party to prevent a recurrence of the problem
• The probable public benefit of a prosecution
• Whether other action would be more appropriate, e.g. the issue of a formal caution or a notice
• Any explanation offered by the individual, organization or business concerned

Where prosecution is warranted every effort will be made to expedite these cases.

HUMAN RIGHTS ISSUES

The European Convention on Human Rights (ECHR) is brought into English law via the Human Rights Act 1998 (HRA) with effect from October 2000.

The HRA introduces an obligation on the Council to act consistently with the ECHR.

There are 3 Convention Rights likely to be most relevant to planning decisions:

• Article 1 of the First Protocol - Protection of Property
• Article 6 - Right to a Fair Trial
• Article 8 - Right to respect for Private and Family Life

It is important to note that these types of right are not unlimited. Although in accordance with the concept of 'proportionality' any interference with these rights must be sanctioned by law, (e.g. The Town and Country Planning Act 1990) and must go no further than necessary.

Essentially, private interests must be balanced against the wider public interest and against competing private interests. Such a balancing exercise is already implicit in the decision-making processes of Committees. However, members must specifically bear human rights issues in mind when reaching decisions on all planning applications and enforcement action.

RULES GOVERNING THE CONDUCT OF OFFICERS

Officers will:

• Identify themselves by name and organization and produce their identity cards
• Act with courtesy, competence, honesty and integrity
• Impartially exercise their independent professional judgement to the best of their skill and understanding
• Be open about how they go about their work in accordance with this policy
• Treat the views of persons/organizations in breach of regulations and of complainants with care, respect and sensitivity
• Talk to colleagues to ensure that others are aware of their actions
• Respect commercial confidentiality

Enforcement Officer means any person who acts on behalf of, or with the formal approval of the Council, to enforce the legislation.

The Council will provide appropriate protection and support to its officers on those occasions where threatening confrontation obstructs the pursuit of their legitimate duties.

REVIEW OF THE ENFORCEMENT POLICY STATEMENT

To enable continuous improvement of the enforcement function, this Policy Statement will be reviewed every two years.

The operational review of Policy will enable the Council to identify where changes need to be made and how procedures can be improved to provide a more efficient enforcement function.

DATE: Statistics amended May 2008