Appendix 1: Planning Enforcement Powers

Investigatory Powers and Enforcement Powers

Planning Contravention Notice (under Section 125 the Town and Country Planning (Scotland) Act 1997)

This is used to obtain information about activities on land where a breach of planning control is suspected. It is served on the owner or occupier, or a person with any other interest in the land or anyone carrying out operations on the land. The persons served are required to provide information about operations being carried out on the land and any conditions or limitations applying to any planning permission already granted. Failure to comply with the notice within 21 days of it being served is an offence and can lead to a fine in the Courts.

Requisition for Information Notice (under Section 272 of the Town and Cou ntry Planning (Scotland) Act 1997)

This provides limited powers to obtain information on interests in land and the use of land. Failure to provide the information required is an offence.

Rights of Entry (Sections 156 - 158 of the Town and Country Planning (Scotland) Act 1997

• Section 156
  Enables the Council to enter land at any reasonable hour without a warrant to ascertain whether there is or has been a breach of planning control or to ascertain whether there has been compliance with any requirements arising from earlier enforcement action.
• Section 157
  Provides the Council the right to enter land with a warrant issued by a Sheriff if entry is refused.

• Section 158
  Provides that the Council has to produce evidence of their authorisation and state the purpose of their entry before they enter the land.

Formal Action - High Hedges (Scotland) Act 2013

Once the local authority has decided that action needs to be taken regarding a high hedge, it must issue a High Hedge Notice. This Notice gives effect to the local authority's decision and details the action to be taken to restore a suitable balance between the amenity enjoyed by the applicant and the hedge owner, having regard also to the needs of the wider community.

A High Hedge notice will specify the 'initial action' and any 'preventive action' required by the owner of the hedge. The Notice will detail what action is required to alleviate the problem (most likely to reduce the height of the hedge) and any maintenance required to prevent recurrence of the problem. A High Hedge Notice remains in existence for as long as the hedge remains on the land or a local authority has withdrawn the notice.

Enforcement Notice (Section 127 - 129 of the Town and Country Planning (Scotland) Act 1997)

This is generally used to deal with unauthorised development, but can also apply to breach of planning conditions. There are similar notices and powers to deal with listed buildings and advertisements (see below). An Enforcement Notice will specify a time period to take effect (a minimum of 28 days), the steps that must be taken to remedy the breach and the timescale within which the remedial action to be completed. There is a right of appeal and the terms of the notice are suspended until a decision is reached.

Failure to comply with an Enforcement Notice within the time specified is an offence, and may lead to a Fixed Penalty Notice of £2,000 or a fine of up to £50,000 in the Sheriff Court if prosecution is pursued. Failure to comply may also result in the Council taking Direct Action to correct the breach (see Further Action).

Advertisement Enforcement (under the Town and Country Planning (Control of Advertisement) (Scotland) Regulations 1984

The Advertisement Regulations and the 1997 Act include various provisions for dealing with the unauthorised display of advertisements, or challenging existing displays. These include:

• Advertisement Enforcement Notice: This seeks to remove advertisements which do not have consent.
• Discontinuance Notice: This allows the Council to challenge a consented display which is no longer considered acceptable. This usually applies to displays which have been in place for some time.
• Removal or obliteration notice: This allows the Council to remove or obliterate placards or posters. This provision was introduced primarily to deal with "flyposting".

Breach of Condition Notice (under Section 145 of the Town and Country Planning (Scotland) Act 1997)

This can be used to enforce the conditions applied to any planning permission. It is effective from the date it is served. It may be used as an alternative to an Enforcement Notice (see above), and is served on any person carrying out the development and/or any person having control of the land. There is no right of appeal. Contravening a Breach of Condition Notice can result in the Council serving a Fixed Penalty Notice for £300 or deciding to prosecute, where a fine can be imposed of up to £1,000.

Stop Notice (under Section 140 of the Town and Country Planning (Scotland) Act 1997)

This is used in urgent or serious cases where unauthorised activity must be stopped, usually on grounds of public safety. When a Stop Notice is served, the Council must have first issued an Enforcement Notice. There is no right of appeal against a Stop Notice and failure to comply is an offence. An appeal can be made against the accompanying Enforcement Notice. If a Stop Notice is served without due cause, or an appeal against the Enforcement Notice is successful, the Council may face claims for compensation, which differentiates a Stop Notice from other types of enforcement notice. There are, however, exemptions. For example, a Stop Notice cannot be served on a dwelling.

Temporary Stop Notice (under Section 144A of the Town and Country Planning (Scotland) Act 1997)

This is used to stop the unauthorised activity immediately. It may be served before the issue of an Enforcement Notice and ceases to have any effect after 28 days.

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 adversely affecting the amenity of the area. This sets out the action that needs to be taken to resolve the problem within a specified period. There is a right of appeal against an Amenity Notice. Such a notice will normally only be used where serious disamenity is caused to the wider area, not for relatively minor instances of untidiness such as poor maintenance of garden lawns.

Interdict and Interim Interdict (Section 146 of the Town and Country Planning (Scotland) Act 1997)

An interdict may be granted by the courts and is used to stop or prevent a breach of planning control. Court proceedings can prove costly and the Council normally only seeks interdicts in very serious cases e.g. where public safety may be involved or unauthorised works are taking place to a listed building. The Council can seek an interdict, however, in relation to any breach without having to use other powers first. Breaching an interdict is treated as a contempt of court and carries heavy penalties.

Request for Application Notice (Section 33A of the Town and Country Planning (Scotland) Act 1997)

This may be served where the Council requires the submission of a planning application for development which has already taken place without the appropriate planning permission. Technically, this constitutes formal enforcement action and extends the period within which other enforcement action may be taken.

Fixed Penalty Notice (Sections 136A and 145A of the Town and Country Planning (Scotland) Act 1997)

This may be served as an alternative to seeking prosecution where the terms of a notice have not been complied with. The penalties are £2,000 (£1,500 if paid within 15 days) for non-compliance with an Enforcement Notice, and £300 (£225 if paid within 15 days) for non-compliance with a Breach of Condition Notice. Failure to pay a Fixed Penalty fine may result in the case being referred to the Procurator Fiscal for possible prosecution.

Listed Building Fixed Penalty Notice (Section 39A (5) and (13) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997)

For Listed Building Enforcement Notices the penalties are £2,000, £3,500 for a 2nd breach and £5,000 for 3rd and subsequent breaches. Failure to pay a Listed Building Fixed Penalty fine may result in the case being referred to the Procurator Fiscal for possible prosecution.

Tree Replacement Notice (under Sections 167 and 172 Town and Country Planning (Scotland) Act 1997)

This may be served when a protected tree (either protected by a Tree Preservation Order or a tree located within a Conservation Area) is felled or otherwise destroyed without prior consent. An appeal may be made against a Tree Replacement Notice.

Possible Further Action

If an Enforcement Notice has not been complied with and the time for compliance has elapsed if the breach is continuing, the Council can pursue the following actions:

• Fixed Penalty Notice
  This may be served as an alternative to seeking prosecution in the Courts.

Prosecution

The Council may refer the matter to the Procurator Fiscal for possible pursuit of the case in the Sheriff Court. A fine of up to £50,000 may be imposed but this will not necessarily resolve the breach of planning control. If the breach continues, the Council can again refer the matter to the Procurator Fiscal.

Direct Action

Failure to comply with the terms of an Enforcement Notice or a High Hedge Notice within the time specified can result in the Council carrying out the required work. The Council will seek to recover the costs it incurs from the current landowner.

Burden on Property

In some circumstances the Council may decide not to take any action and leave an extant enforcement notice as blight on land/property. This can lead to a delay if a house/land is to be sold and the sellers agents require these breaches to be rectified in order for the sale to conclude. Where there are any outstanding financial implications registered against land/property that appear on a Councils Property Enquiry Certificate, all sums due to the Council will be deducted from the future sale of that land/property.