Planning compliance charter: advice for alleged contraveners

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How to respond to an allegation by the Council

Those who are alleged by the Council to have carried out unauthorised works should read the correspondence they have received thoroughly. Any such correspondence will carefully set out the Council’s position and provide advice about what to do next. It will state what courses of remedial action are available and, if applicable, the penalties for non-compliance. Given the costs involved, the Council may refuse to provide further advice beyond this, especially if a fee would ordinarily be levied for providing such advice to the public (as is the case with pre-application advice, for example).

In light of the above, alleged contraveners are advised to seek the assistance of a planning consultant if they are in any doubt about their obligations. A list of such agents who operate in the locality is available. Alternatively, Planning Aid Wales (external website), which is a charitable organisation which helps eligible individuals to participate more effectively in the planning system, provides advisory services including a helpline.

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Formal notices

There are a number of formal notices which the Council has the power to issue in response to an alleged breach of planning control. There is no obligation on the Council to make informal attempts at resolving an alleged breach prior to issuing a formal notice.

Each type of notice has a different function. They also have different penalties for non- compliance. These vary depending on the notice served, and will be expressed on, or in an annex attached to, the notice. They most often take the form of one or more of the following:

  • prosecution, which can result in a fine
  • the Council carrying out the works required by the notice followed by action in the County Court to recover all incurred costs
  • the Council carrying out the works and then registering a charge on the property with the Land Registry, recoverable should the property be sold

Certain notices are appealable. If the recipient of a notice has this right of appeal, the details of how to exercise it will be given in an annex to the notice. Further details about the grounds under which an appeal can be raised will also be provided.

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Enforcement Notices

Section 172 of the Town and Country Planning Act 1990 gives the Council the power to issue an Enforcement Notice to require an alleged breach of planning control as defined in the Act (see what is a breach of planning control) to be remedied. The required remedial action will be identified on the notice. Once served, there is a period of no fewer than 28 days before the notice comes into effect, to allow its recipient to raise an appeal. Once the notice comes into effect, there is a further period of time to allow for compliance. This period for compliance will vary depending on the nature of the alleged breach. Failure to comply with an enforcement notice within the required timeframe is a criminal offence and can lead to a substantial fine.

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Listed Building Enforcement Notices

It is a criminal offence under Section 9 of the Planning (Listed Buildings and Conservation Areas) Act 1990 to alter, extend or demolish a structure subject to a Listing without Listed Building consent. A Listed Building Enforcement Notice (“LBEN”) seeks to have unauthorised works remedied by:

  1. requiring the building to be brought back to its former state; or
  2. if that is not reasonably practicable or desirable, requiring other works to alleviate the effects of the unauthorised works; or
  3. requiring the building to be brought into the state it would have been in if the terms of any Listed Building consent had been observed

The Notice must specify a time period for securing compliance with its requirements. There is a right of appeal against a LBEN; the procedures are similar to those used for an appeal against an Enforcement Notice.

If works subject to a LBEN are later authorised by a retrospective application for Listed Building consent, the notice will cease to have any effect. The liability to prosecution for an offence committed before the date of any retrospective consent will remain, however. The penalty for offenders is a substantial fine, imprisonment, or both.

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Breach of Condition Notices

A Breach of Condition Notice (“BCN”) may be served when a condition attached to a planning permission has not been adhered to. Because the imposition of any given condition can be appealed at the time when the planning permission was granted, there is no right of appeal against a BCN. Failure to comply with a BCN can, upon prosecution, lead to a fine.

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Stop Notices and Temporary Stop Notices

The Council may issue a Stop Notice or a Temporary Stop Notice in order to stop a particularly harmful activity with immediate effect. These notices are typically reserved to dealing with especially severe alleged breaches - ‘Priority 1’ cases (see how to report an alleged breach of planning control) which are ongoing and whose harm is irrevocable.

A Temporary Stop Notice allows the Council to stop a harmful activity in order for us to investigate the matter further and, if appropriate, issue a formal notice to have the identified harm remedied. Stop Notices may only be issued at the same time as an Enforcement Notice or after an Enforcement Notice has been served, and thus are best used to ensure that a harmful activity does not continue during appeal proceedings.

Failure to comply with a Stop Notice or a Temporary Stop Notice can lead to a substantial fine.

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Enforcement Warning Notices

An Enforcement Warning Notice (“EWN”) formally requires its recipient to seek to remedy an alleged breach by undertaking one of the following courses of action:

  • apply for planning permission for the unauthorised development in retrospect
  • cease the alleged breach

Serving an EWN prevents an unauthorised development from potentially gaining immunity from further enforcement through the passage of time (see development which is immune from enforcement action).

The Council will often issue an EWN in relation to alleged breaches which, after an initial assessment, appear to accord with planning policy in principle. They are reserved for circumstances in which, subject to the imposition of conditions, there is a ‘reasonable prospect’ that retrospective planning permission would be granted if an application for such were to be made. They do not act as a guarantee that planning permission will be forthcoming. Failure to comply with an EWN may lead to further formal action, normally the service of a full Enforcement Notice.

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Other notices

The Council has the power to issue further types of formal notice, such as those which deal with unconsented advertisements, untidy properties and unauthorised works within Conservation Areas. As is the case with the abovementioned notices, the penalties for non-compliance and the available options for raising an appeal will be expressed either on or in an annex to the notice issued.

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Injunctions

If the Council considers a breach of planning control to be sufficiently serious, it may apply to the Courts for a restraint injunction. Those in breach of an injunction can be imprisoned.

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Submitting a planning application

Alleged contraveners may be instructed to attempt to regularise unauthorised development by submitting a planning application. In order to ensure that the submitted application passes validation checks - that is, contains all the documentation we need in order to consult on and determine the application - applicants are advised to employ the services of a planning consultant. This can often save applicants time and money in the long run. See our planning advice page for a list of agents who operate within Denbighshire, as well as general advice on submitting planning applications. Our support team can also provide limited assistance by email, at planning@denbighshire.gov.uk, or by phone on (01824) 706727.

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Non-determination of retrospective planning applications

The Council has the power to decline to determine retrospective planning applications for development that is subject to an enforcement notice.

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Officers’ right of entry onto land

The planning compliance officer has a right of entry onto land to:

  • ascertain whether there has been a breach of planning control
  • determine whether and how the Council’s powers should be exercised
  • determine whether there has been compliance

Any person who wilfully obstructs an authorised officer acting in the exercise of a right of entry shall be guilty of an offence and will be liable to prosecution.

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Contact us

Website: contact us: Planning

Email: planning@denbighshire.gov.uk

Phone: (01824) 706727

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