Planning compliance charter: advice for complainants

Unauthorised Gypsy/Traveller site between Llandegla and Bwlchgwyn

The Council has served a planning Enforcement Notice in relation to the above site, and we continue to receive a high volume of queries about the case. In response, we are providing updates about the case here.

The current status of the case is as follows:

An Enforcement Notice has been issued to require the restoration of the site to its prior, authorised state. The period for compliance with the Notice elapsed on the 6th May 2021, but its recipients have not complied with the requirements of the Notice. The Council has therefore carried out a partial clearance of the site. The Council is actively considering what further steps we can take to enforce compliance. We have obtained independent legal advice to ensure that our next steps are compliant with the law.

This status was updated on the 17th September 2021 and is reviewed regularly. A further status update will be provided in due course.

Unauthorised Gypsy/Traveller site between Llandegla and Bwlchgwyn: Frequently Asked Questions

Further information about how the Council deals with alleged planning breaches is provided in our planning compliance charter.

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What we do and don’t investigate

The Council’s planning department investigates matters which the law gives us powers to adjudicate over - typically matters which require planning permission. We do not have control over, and do not therefore get involved in, civil matters such as property disputes, property damage and trespass. Issues such as dangerous trees, blocked drains and inconsiderate parking are best resolved directly between the interested parties, as these are not matters which are overseen by the planning department.

In some cases (normally those involving larger schemes), a condition attached to a planning permission may control certain aspects of a development. For example, the planning department may have control over operating hours and mitigation measures, though this is not usually the case for smaller schemes. Complaints relating to the construction phase of developments should in the first instance be referred to the site developer, who may be able to resolve the situation with immediate effect. If this approach is unsuccessful, complainants may wish to consider whether the activity they are concerned about should be reported to the planning department.

The full list of matters which the planning department can investigate is as follows:

  • development (i.e. building works or a change of use of land) which requires planning permission but has proceeded without it
  • development which has proceeded contrary to plans approved by the Council as part of a planning permission
  • development which has proceeded contrary to conditions imposed by the Council as part of a planning permission
  • unconsented alterations to Listed Buildings
  • unconsented demolition of structures in a Conservation Area
  • wilful damage to protected trees, i.e. those which are subject to a Tree Preservation Order or located within a Conservation Area
  • uprooting of non-domestic hedgerows
  • advertisements whose display requires consent but does not have it
  • untidy properties which are having a detrimental effect on the wider area

If an issue is not listed above, it may be the case that it is one for another department of the Council to resolve. For example, dangerous buildings are a building control issue, while the highways department may be best placed to resolve parking issues. The environmental health team can deal with nuisances such as noise, vermin and odour.

Alternatively, the issue may be best referred to another agency such as Natural Resources Wales (external website), Welsh Water (external website), North Wales Police (external website) or North Wales Fire and Rescue Service (external website).

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Development which is immune from enforcement action

If a breach of planning control has existed for some time, it may have acquired immunity from remedial action. Planning law prevents the Council taking enforcement action against unauthorised development which has existed for:

  • four years in cases of building / engineering / mining operations
  • four years in cases consisting of the change of use of any building to use as a single dwellinghouse
  • ten years in all other cases

Breaches of planning control which do not involve ‘development’ (see development which does not need planning permission), such as breaches of Listed Building legislation or instances of untidy property, do not accrue immunity from enforcement.

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Speculative reports

The planning department does not investigate speculative reports of activities which have yet to occur. This is because the resources which are available to the planning compliance function are solely dedicated to investigating and resolving unauthorised works which are ongoing or have already taken place. It is also the case that the scale and nature of a breach needs to be understood before the best course of remedial action can be identified.

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Anonymous reports

The planning department does not investigate anonymous reports or reports made using a false identity. This is because we may wish to correspond with complainants in order to gain a better understanding of the alleged breach or to discuss the progress of remedial action.

All personal details are confidential and will not be made public during the investigation phase. On rare occasions, those involving serious breaches which result in an appeal or a prosecution, we may be required to give details of the complaint to the Planning Inspectorate or the Courts. These details may include the complainant’s name and address, though we would only divulge these with the complainant’s express consent.

Similarly, we may need to liaise with external agencies such Natural Resources Wales, the police and the fire and rescue service in order to investigate an alleged breach effectively.

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The role of complainants

The planning compliance function is most successful when it works collaboratively with complainants. The planning department cannot proactively monitor every street and property in Denbighshire, and this is where members of the public come in. By providing local knowledge and ‘eyes and ears’ on the ground, local residents and organisations are a key component in the process of securing planning compliance.

As well as providing a monitoring presence, local residents and organisations are uniquely placed to remedy the harmful effects of breaches before they need to be escalated to the Council. It is a regrettable fact that the intervention of a planning compliance officer can sometimes be greeted with hostility by developers who are alleged to be carrying out unauthorised works. It is often the case that developers find it unnecessary and antagonistic for the Council to get involved; they will often ask why the aggrieved party couldn’t have raised their concerns directly, in order to reach an amicable (and probably swifter) solution.

In order to maintain good community relations, as well as to ensure that our resources are directed at the most severe problems, the Council’s involvement should be treated as a last resort. Before reporting an issue to the Council, complainants should consider whether a solution to the problem could be reached more amicably and without the use of limited Council resources.

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The role of city, town and community councils

City, town and community councils have excellent links to the places they serve, and they can use their well-established connections to bring about quick and effective resolutions to local planning issues, to the benefit of all involved. It is also a priority of the Council to work with people and communities to build independence and resilience, involving local people and organisations in shaping their communities and improving services; and we recognise the crucial role that city, town and community councils can play in delivering these objectives.

The planning compliance function provides a regulatory mechanism through which improvements can be made to Denbighshire’s communities. Shaping communities on a wider scale takes more than reactive regulation, though. City, town and community councils which have a generalised concern about their area’s built environment should therefore consider how they can work in partnership with the Council to proactively enhance the public realm. For example, they may wish to consider the strategic benefits of commissioning appraisals which the Council could then use to introduce new planning guidance and/or place-specific controls. Localised controls such as Conservation Areas, Areas of Special Control of Advertisements and Article 4 Direction Areas can make a real difference to the public realm, but limits to resources mean that it is not always possible for the Council to implement them unaided. It is for this reason that it is now so important for partnership organisations such as city, town and community councils to work collaboratively with the Council to stimulate regeneration and enhance the built environment.

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How to report an alleged breach of planning control

If other methods of remedying an alleged breach prove to be unsuccessful, complainants may wish to report the matter to the Council. We only investigate reports of alleged planning breaches which are submitted to us on the dedicated form:

Report a planning breach

Alternatively, a hard copy of the form can be sent out to prospective complainants by post.

By completing the form, complainants are ensuring that the planning department has all the information we need to carry out any investigation as quickly, effectively and safely as possible. Quite often, the local knowledge that complainants and local organisations can provide on the form is what makes the difference between a successful and an unsuccessful investigation. For this reason, we may refuse to investigate an alleged breach until all of the necessary information has been provided.

Similarly, the success and speed of an investigation can hinge on the availability of corroborating evidence. Accordingly, complainants may wish to submit photographs, sound recordings, videos and activity logs. It is important for complainants to note that their reports may lead to a criminal investigation, so they must ensure that the information and evidence they provide is accurate and a true representation of the facts.

The Council will endeavour to acknowledge reports of planning breaches within ten working days. Complainants should inform the Council if they do not receive an acknowledgement within this timeframe.

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The investigation phase

The Council receives around 250 reports of alleged planning breaches each year. Investigations must therefore be prioritised according to the level of harm being caused. The highest priority is given to dealing with breaches which are imminently life-threatening or irrevocably harmful, especially if they are ongoing. Thereafter, priority is usually given to breaches affecting the places and artefacts which are recognised for their special qualities, such as Listed Buildings, Conservation Areas, the Area of Outstanding Natural Beauty (“AONB”) and protected trees. Similarly, breaches which conflict with the Council’s Corporate Plan will usually be given priority over other cases.

Regard must also be paid to when the breach first occurred. If an unauthorised development is, owing to the passage of time, approaching immunity from enforcement (see development which is immune from enforcement action), the investigation into the matter may need to be prioritised accordingly.

Below are some examples of breaches which the Council typically encounters, and identifies where they would normally fall in the order of priority.

Priority 1 (urgent)

Type of breach:

  • ongoing works to a Listed Building or a Scheduled Ancient Monument which are causing irrevocable and significant damage to its character
  • ongoing works which are causing irrevocable and significant damage to a designated natural asset, e.g. a Site of Special Scientific Interest or a tree subject to a Tree Preservation Order
  • works which are putting people in imminent danger of death

Examples:

  • ongoing excavations at a Scheduled Ancient Monument
  • the ongoing felling of a group of protected trees
  • the creation of a vehicular access onto a blind corner on a fast A-road

Priority 2 (high)

Type of breach:

  • works which have caused irrevocable and significant damage to a Listed Building or a Scheduled Ancient Monument, but are not ongoing
  • works which have caused irrevocable and significant damage to a designated natural asset, but are not ongoing
  • a harmful development which, due to the passage of time, is approaching exemption from enforcement measures

Examples:

  • a Listed Building which has had stained-glass windows removed
  • excavation works which have occurred within a SSSI
  • a non-domestic hedgerow which has been uprooted

Priority 3 (moderate)

Type of breach:

  • works which have had a significant adverse effect on the character of a designated heritage or natural asset, but are not ongoing
  • unauthorised dwellings in the open countryside
  • unauthorised, non-temporary advertisements
  • buildings which, owing to their lack of maintenance, are causing significant visual harm to the surrounding public realm; especially empty homes
  • breaches of conditions attached to planning permissions

Examples:

  • an unauthorised extension on a Listed Building
  • quarrying within the Area of Outstanding Natural Beauty
  • an unauthorised shop sign in a Conservation area
  • an unauthorised conversion of a barn into a dwelling
  • a long-term empty home which is visually harming a busy public thoroughfare
  • a new dwelling not being used as an Affordable Home, in breach of planning conditions
  • demolition of a wall in a Conservation Area

Priority 4 (low)

Type of breach:

  • development which is not causing significant harm to public amenity, the environment or to the health, safety or wellbeing of the public
  • breaches which appear to be temporary
  • works to non-Listed buildings which are not within a Conservation Area or the Area of Outstanding Natural Beauty
  • unauthorised ‘householder development’ (works within the garden areas of houses)
  • overgrown front gardens

Examples:

  • outbuildings in gardens
  • fences that are too tall
  • changes of use, such as a bookshop selling tea and coffee

While all reports of alleged planning breaches will be recorded, those that do not meet priority status will be investigated if and when workloads allow. The Council aims to investigate 50% of reports within 10 weeks, and 80% within 12 weeks. Cases which are complex, lacking in evidence or relatively low-priority may take more than 12 weeks to investigate.

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Site visits

The Council does not carry out site visits in response to every complaint, but some cases will demand an on-site inspection. It is for the Council to decide whether a visit is needed as part of an investigation.

In order to make the most efficient use of resources, visits are carried out in geographical groupings. For this reason, it may be some weeks after a report has been received before a site visit is undertaken. In order to expedite matters, complainants may wish to provide evidence which would negate the need for a site visit.

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What happens once a breach has been investigated?

Once an alleged breach has been investigated, the Council will then pursue remedial action or close the case down. Cases will be closed down at this stage if: a) we do not have sufficient evidence of a breach; or b) a breach has been identified, but is not so harmful that the Council would find it expedient to devote further resources to remedying the matter.

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Expediency

The planning compliance function is a discretionary service offered by the Council. As such, it is for the Council to decide whether to pursue remedial action in response to alleged breaches of planning control. The aim of the planning compliance function is to remedy the adverse effects of breaches, not to punish the people carrying them out.

The pivotal issue for the Council is whether the unauthorised development is unacceptably affecting public amenity. It is not an appropriate use of Council resources to take action against a trivial or technical breach which causes negligible harm to public amenity.

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Remedial action

Depending on the severity of the unauthorised development, any ensuing remedial action will in most cases take one of two forms. The Council may:

  1. pursue the cessation of the breach, through formal enforcement action if necessary. This option is appropriate when there is adequate evidence of a harmful breach which irreconcilably conflicts with planning policy
  2. request a planning application to be submitted in retrospect. This is an appropriate method of dealing with breaches which may be harmful, but whose harm could potentially be controlled by attaching a condition to a retrospective planning permission. For example, a planning condition may mitigate noise by requiring the installation of soundproofing. It is also appropriate to request an application if the nature of the breach is such that the submission of evidence and/or the input of specialist consultees is needed in order that an informed decision about a development’s acceptability can be made.

In cases where a requested application turns out not to be successful, or not submitted at all, the Council may resort to pursuing the cessation of the breach, through formal enforcement action if appropriate.

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Formal enforcement action

The Council has the power to serve enforcement notices which formally require recipients to undertake remedial action or otherwise face a penalty. There are different types of notice the Council can serve, depending on the nature of the breach. Certain notices may only come into effect 28 or more days after their date of issue, in order to allow the recipient the opportunity to appeal. Appeal proceedings are overseen by the Planning Inspectorate, who will either uphold, modify or quash the notice.

Notices must offer recipients a reasonable period within which to carry out the required remedial works. This period of compliance starts when the notice comes into effect or, in cases where appeal proceedings are brought, when the Planning Inspectorate issues their decision.

For relatively minor breaches, the service of the enforcement notice may be deemed sufficiently punitive in itself, given its effect on land valuation. In most cases, however, the response of the notice’s recipient will be monitored once the period of compliance has elapsed. If the monitoring reveals that the recipient of a notice has failed to comply with its requirements, the Council may, if expedient, seek to secure further punitive action.

Penalties for non-compliance vary depending on the type of breach and the notice served (see formal notices). Prosecution may be pursued if it is in the wider public interest to do so, and if legal advice suggests that there is a reasonable prospect of success.

The timescales needed for the complete resolution of cases can unfortunately be extensive, and often dependent on factors outside of the Council’s control. The Council will nonetheless strive to resolve all priority cases in a timely manner, and, if expedient, will pursue all appropriate and reasonable avenues to do so.

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