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Planning Enforcement Protocol

 

1. Introduction

  • The Planning department provides a dedicated enforcement team which plays an essential role in an effective and efficient planning service.
  • Effective enforcement is important to tackle breaches of planning control which would otherwise have unacceptable impacts on the area.
  • This document sets out the context for the operation of the Planning Monitoring and Enforcement function within Newcastle City Council. It sets out the standards and procedures that we will take when using the wide range of legislative powers available to us in planning matters.

 

2. The City Council’s Priorities

The City Council has four very clear priorities for how it will make a positive difference to the city. These are:

  • A working city – creating good quality jobs and helping local people develop the skills to do them
  • Decent neighbourhoods – working with local communities to look after each other and the environment
  • Tackling inequalities – tackling discrimination and inequalities which prevent people from fulfilling their true potential
  • A fit for purpose council - a council which leads children and young people

The team contributes to Council’s main priority objectives by:

  • Protecting the amenity of those who live and work in the city from the harmful effects of unauthorised development, and the neglect of land and buildings.
  • Protecting both the natural and built historic environment.
  • Ensuring that we achieve the environmental, economic and social benefits that have been agreed on planning applications.
  • Enabling businesses to operate successfully, without this being achieved at the expense of the environment and public amenity.

 

3. National Policy – Proactive Planning

The Monitoring and Enforcement Team plays a key role in delivering an effective Planning service.  The team aims to deliver good community outcomes in line with the adopted development plan.

Planning Enforcement is not an isolated activity simply limited to reacting to complaints. The team takes a positive and proactive approach in relation to the monitoring of conditions, as well as the monitoring of sites to ensure they comply with the planning permission details.

A proactive approach to planning enforcement can make a significant contribution to regeneration and sustainable development.

It is not possible to monitor all developments, as there are a high number of applications received each year. Priority will be given to key identified sites which will undergo direct monitoring to ensure the development is according to the approved plans.

National guidance and policy on enforcement

  • When investigating alleged breaches of planning control, the team will follow central government advice. Government advice is contained in the National Planning Policy Framework and National Planning Practice Guidance: Ensuring Effective Enforcement.
  • The National Planning Policy Framework  states:
  • “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control. Local planning authorities should consider publishing a local enforcement plan to manage enforcement proactively in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where it is appropriate to do so”.
  • National Planning Practice Guidance: Ensuring Effective Enforcement (NPPG) sets out the general approach to enforcement, which may include some or all of the following stages:
  • Investigation
  • Assessment of alleged breach
  • Persuasion/Negotiation (remedial action or retrospective application)
  • Consideration of formal enforcement proceedings
  • Possible Instigation of formal proceedings

Where possible, all breaches of planning control should be resolved, voluntarily, with negotiation and persuasion.

If we can't do this, team can consider the use of formal enforcement proceedings in an attempt to secure compliance.

National guidance sets out that local planning authorities have a general discretion to take enforcement action, when it is appropriate and expedient to do so having regard to the development plan and any other material considerations.

When assessing the need for enforcement action, the Council should be guided by the following considerations:

  • Whether the breach of planning control unacceptably affects public amenity or the existing use of land and buildings meriting protection in the public interest;
  • Have regard to the provisions of the development plan and to all other material planning considerations raised by a particular breach;
  • Enforcement action should always be commensurate with the breach of planning control to which it relates;
  • That local planning authorities should avoid taking formal enforcement action where:
  • There is a trivial or technical breach of planning control which causes no material harm or adverse impact on the amenity of the site or the surrounding area;
  • Development is acceptable on its planning merits and formal enforcement action would solely be to regularise the development;
  • In their assessment, the local planning authority consider that an application is the appropriate way forward to regularise the situation, for example, where planning conditions may need to be imposed.

 

4. What is a breach of planning control?

The Town and Country Planning Act 1990 defines a breach of planning control as “the carrying out of development without the required planning permission or failing to comply with any condition or limitation subject to which planning permission has been granted.”

A breach of planning control can include the following:

  • Building work and/or a material change of use undertaken without planning permission being granted;
  • Development not being carried out in accordance with the approved plans of a planning permission, and
  • Non-compliance with conditions attached to a planning permission

There are also other legislative codes which are looked after by the enforcement function. Breaches of this legislation can include the following:

  • Works being carried out to a Listed Building which affect its character without listed building consent being granted;
  • Non-compliance with conditions attached to a listed building consent;
  • The display of advertisements for which permission is required but not granted;
  • The removal of protected trees and/or trees situated within a Conservation Area for which notification or permission is required but not given; and
  • Untidy land or buildings

Not all development or change of use requires planning permission from the local planning authority. The Town and County Planning (General Permitted Development) (England) Order 2015 grants permission for various forms of development without the need to apply for permission from the Council.  The range of permitted development rights has recently been extended to include specific temporary uses, subject to limitations and conditions outlined in their relevant classes. For example a premises can now change from a use falling within class A1 to a class A3 (restaurants and cafes) providing that prior to the use commencing the applicant notifies the local planning authority of the date the site will begin to be used and details of the proposed use.

Development granted by virtue of the above Order is considered to be ‘permitted development’. Permitted development cannot be subject to enforcement action even in instances where development is considered to cause harm. Further information on permitted development is available from the Planning Portal website at: www.planningportal.gov.uk.

A number of Article 4 Directions are in place across the City which remove permitted development rights granted through national legislation. Article 4 Directions include changes from family dwellings (Class C3) to houses in multiple occupation (Class C4) in parts of the City. In January 2015 the City Council also introduced a Regulation 7 Direction which effectively prevents the display of To Let boards on residential properties within areas such as Heaton, High West Jesmond, Jesmond, Sandyford, Spital Tongues, South Gosforth. Details of Article 4 Directions and the Regulation 7 Direction in Newcastle upon Tyne can be found on the Council’s website under the Planning and Buildings Section.

The Monitoring and Enforcement Team are not able to assist in matters which are covered by other legislation, for example, restrictive covenants on land, complaints in relation to public health matters, high hedges or the improper use of the highway. Any complaints with regard to these issues will be passed onto the relevant department.

 

5. What happens when you report a breach of planning control?

Most of our investigations come from complaints from members of the public and local councillors. The assistance of the public is important to the success of an effective enforcement function.

Complaints can be made in writing, by telephone or by email, or in person via our Community and Information Hub at the City Library . The address and contact details of the Monitoring and Enforcement Team are set out at the end of this document.

All investigations are carried out confidentially and the identity of the complainant will not be revealed by the Council.

Any information provided by members of the public is treated in confidence unless it is necessary to disclose this information at an appeal or in court when it will be made public. In such cases, the individual’s consent will be sought prior to this information being made public. Such occasions are very rare and involvement is on a voluntary basis.

Given that the complainant’s details are entirely confidential, we do not usually investigate anonymous complaints. If complainants feel uncomfortable in providing their contact details, an officer will be able to advise on the best course of action.

 

Performance standards

We will try to acknowledge all complaints within 5 working days. In most cases this is by the same method through email or telephone, where possible.

We will try to contact the complainant within 20 working days from the date when the complaint was received, to inform you whether there is a breach of planning control and if so how we intend to deal with the matter.

If the Council decide to take, or not to take enforcement action, we will try to contact the complainant within 10 working days of that decision, and the reason will be explained.

We will acknowledge and update 90% of the complainants within these agreed timescales.

We publish our performance against these standards every quarter in a report to the Council’s Planning Committee.

 

Case priority system

Some alleged breaches need be given a higher priority than others.

Priority will be given to cases where there is the possibility of the most harm being caused. The site visit performance standards for the delivery of the service have been designed to reflect this.

The following priority system will apply to each case according to the following categories:

Priority 1

This category includes complaints relating to work or development which may lead to irreversible harm and could include:

For these cases the first site visit will be within 1 working day from the receipt of the complaint.

Priority 2

This category includes any development or activity which causes clear and immediate harm to the locality and could include:

  • Ongoing operational building works

For these cases, the first site visit will be within 5 working days from the receipt of the complaint.

Priority 3

This category includes enquiries for which there is less impact of harm being caused and could include:

  • Changes of use
  • Breach of condition
  • Untidy sites
  • Unauthorised display of an advertisements
  • Minor developments such as sheds, fences, hard standings and satellite dishes

For these cases, the first site visit will be within 10 working days of the receipt of the complaint.

Priority 4

This category includes enquiries about the unauthorised display of residential letting boards in the Regulation 7 Direction area.

For these cases a letter requiring removal of the board within 7 days will be issued to the letting agent within 7 days of receipt of details of the agent from the complainant.

  • The category of each case may change following the initial site visit and depending on the level of harm being caused.

 

6. What action will be taken?

A site inspection will be carried out according to the priority system as set out above.  From the evidence collected during the site inspection, we will assess if planning permission is needed.

No breach of control

In many cases, the initial site visit will reveal that there isn't a breach of planning control. This can be because the matter does not constitute development, or benefits from permitted development rights.

The case officer will contact the complainant to explain that the Council is unable to take any action through its planning enforcement powers.

Potential breach of control

In many cases, it is not possible to come to an immediate conclusion whether or not there is a breach of planning control.   In these cases, it is often necessary to carry out more observations over a period of time before we can decide whether there has been a breach.

In this case, we will explain to the complainant that further investigations and monitoring is needed.

Breach of control identified

If planning permission is required, we will contact those responsible and explain the best course of action so that the issue can be resolved.

In many cases, we will invite them to make a planning application. This is in accordance with national guidance and this allows for a full formal assessment to be carried out and with the statutory consultation period.

If there is no submission of a planning application, or remedial actions have not been carried out, a Section 330 or Planning Contravention Notice may be issued. These notices can be used in order to gain additional information to further investigate a breach of planning control and/or to enable the service of a formal notice. The owner will be advised that it is in their best interests to resolve the breach as any outstanding notice served will appear on any land search which may affect any future sale of the property.

If planning permission is unlikely to be given, we will ask for the use to cease or the unauthorised development to be removed. A suitable period of time is usually given depending on what needs to be done.

A quarterly review will be carried out for all outstanding unresolved cases. If negotiation and persuasion methods have failed to resolve the breach of planning control, we'll make an assessment as to the level of harm that is being caused.

Harm can be caused through a number of factors including:

  • Adverse impact on visual amenity due to poor design or inappropriate materials;
  • Loss of protected trees or damage to listed buildings;
  • Adverse impact on residential amenity;
  • Noise, nuisance or disturbance from the operation of a business;
  • Untidy land and run down or derelict buildings.

It is usually considered inappropriate to take formal enforcement action against a trivial or technical breach of planning control which causes no harm to amenity in the locality of the site.

Formal enforcement action

Formal enforcement action is only instigated when it is considered expedient and all other avenues to resolve the problem have failed.

Any action taken must meet the tests as set out in Government Guidance and be proportionate to the breach of planning control to which it relates.

The decision to take formal enforcement action or to instigate prosecution proceedings is taken under delegated powers.

An Enforcement Notice can be served on the owner and/or occupier of the land. The notice must explain the nature of the breach of planning control and set out what remedial measures should be carried out and the date by which this should be carried out.

If the Council consider that an unauthorised development is causing serious harm to public amenity in the neighbourhood of the site, vigorous enforcement action may be taken, including if appropriate the service of a stop notice, to remedy the breach urgently or to prevent further harm being caused to public amenity.

There is a right to appeal to the Planning Inspectorate (who act on behalf of the Secretary of State) against an Enforcement Notice. If an appeal is lodged, the Notice does not come into effect and the requirements to comply with the Notice are suspended until the outcome of the appeal is decided.

If the appeal is allowed, no further action can be taken. If the appeal is dismissed, the requirements of the Enforcement Notice come into effect from the date of the decision letter from the Planning Inspectorate. The Inspector may amend an Enforcement Notice if that he is satisfied that it does not cause injustice to either party.

Failure to comply with an Enforcement Notice constitutes a criminal offence and the Council may go ahead with prosecution proceedings in the Magistrates Court. This means that formal enforcement action is in many cases, not straightforward and can be a lengthy and time consuming process.

The Council can also carry out other formal enforcement proceedings including:

  • Service of a Breach of Condition Notice where development has taken place without compliance with a condition(s) of a planning permission;
  • Service of a notice requiring the proper maintenance of land or building (Section 215 Notice);
  • Prosecution in connection with unauthorised advertisements;
  • Prosecution for unauthorised works to a listed building;
  • Prosecution for unauthorised works to a protected tree;
  • Remove and dispose of illegal advertisements after the serving of a removal notice.

 

8. Equality and Diversity Statement

The Development Management Service is committed to the City Council’s objective of achieving the Excellent level of the Equality Framework for Local Government (EFLG).

The Service has assisted in the development of an Equality and Diversity Action Plan. The purpose of the plan is to ensure that the appropriate infrastructure is in place to embed equality and diversity but primarily, to ensure our customers receive an excellent level of service that is inclusive and meets their needs regardless of which section of the community they belong to.

If requested we will ensure that documents are translated into the customer's preferred format. Interpreters will also be used for those people who have difficulties understanding English through the use of the Language Line.

If you require this information in another format or language please phone a member of the Monitoring and Enforcement Team on the contact details set out below.

 

9. Contact details

You can contact a member of the Planning Enforcement Team in any of these ways:

The complainant's details are completely confidential, so we do not usually investigate anonymous complaints. If complainants feel uncomfortable in providing their contact details, we will be able to advise on the best course of action. You can also contact your councillor to submit an enquiry on your behalf.

Planning Enforcement is not able to assist in matters which are covered by other legislation, for example, complaints in relation to public health, high hedges, or the improper use of the highway. Any complaints on these issues will be passed onto the right department.

Did you know?

We do not usually investigate anonymous complaints. The complainant's details are completely confidential, but if you don't feel comfortable providing contact information, we will be able to advise on the best course of action. You can also contact your councillor to submit an enquiry on your behalf.

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