Planning & Building Control

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Page last updated at 08:57 GMT, Monday, September 6 2010

Planning Enforcement 

• What is a breach of planning control?
• What is planning harm?
• How do I make a complaint?
• What if someone complains about me?
• High Hedges 
• Contact us

An introductory guide to Planning Enforcement is in our guidance leaflet below:

• Planning Enforcement - The Process Explained (pdf)
  
  

Introduction

Planning laws are designed to control the development and use of land and buildings in the public interest. The Council expects land owners and developers to comply with planning laws and not carry out development until the necessary planning permission has been obtained. In the event of unauthorised development the Council has a range of enforcement powers that derive from the laws passed by Parliament which are exercised in accordance with Government circulars, guidance and Council policy.

The Borough Council's priorities are to protect amenity, safeguard the built environment and uphold local planning policy in the quickest and most effective way.

This statement explains how Eastleigh Borough Council carries out its planning enforcement activities.

Enforcement Concordat

The Council signed up to the principles of the Government's Enforcement Concordat:

• Proportionality – Any action that is taken will relate to the seriousness of the breach.
• Consistency – Officers act in a similar way when faced with similar circumstances. The Council will also work with other services and Authorities to ensure that consistency is maintained at a local and national level as far as possible.
• Transparency – The Council will try to help people understand what the law requires of them and make clear what needs to be done to achieve compliance. The Council will also make clear what people should do if they are not happy about any action taken or a decision not to take action.
• Targeting– Our enforcement efforts will be directed against those whose activities pose the most serious risks or create the most danger to the public interest and those who have a history of non-compliance.

Planning Regimes

There are four planning regimes:

1.  Development (building, engineering and mining operations; and material change of use of buildings/land)
2.  Advertisements
3.  Built Environment (listed building consent and conservation area)
4.  Natural Environment (tree preservation order consents and all trees within conservation areas)

The crucial difference between the four regimes is that all carry a criminal liability EXCEPT development. Many breaches of planning control are not criminal offences and no offence is being committed if a person carries out development without first obtaining planning permission. A criminal offence only arises when a notice has been issued, has taken effect and its requirements have not been complied with. Only then can the Council take prosecution action in the courts.

What is a breach of planning control?

Development carried out without planning permission is often referred to as a breach of planning control.  A breach of planning control is defined in the Town and Country Planning Act 1990 as 'the carrying out of a development without the required planning permission, or failure to comply with any condition or limitation subject to which planning permission has been granted'.

Breaches of planning control will include:

• Unauthorised erection of a building
• Development not in accordance with the approved plans of planning permissions
• Change of use of a property
• Unauthorised works to trees protected by a tree preservation order or in a conservation area
• Carrying out works to a listed building without listed building consent
• Unauthorised demolition in a conservation area
• Failure to comply with the conditions attached to a planning permission
• Failure to properly maintain land so that it affects the amenity of the area
• Displaying a sign or advertisement without advertisement consent

The following are not breaches of planning control:

• Parking of commercial vehicles in residential areas or on grass verges.
• Operating a business from home where the residential use remains the primary use and there is no adverse impact on residential amenity.
• Clearing land of undergrowth, bushes and trees provided they are not subject to planning protection
• Parking of a caravan within the curtilage of a residential property provided that it is stored, or used as an extra bedroom, and not used as a separate, self-contained residential unit.
• Obstruction of a highway or right of way
• Boundary disputes (civil matter)
• Deeds and covenants (civil matter)
• Where development is 'permitted development' (see below)

The Council has powers of enforcement in relation to other services such as highways, environmental health, trees etc. Our investigations are often coordinated with other services so that any action is carried out under the most appropriate legislation.
 

Enforcement is discretionary

Enforcement powers are discretionary and the Council is not required to take action just because there has been a breach of planning control. Enforcement action should be taken where there is harm. The key test is whether the breach of planning control would unacceptably affect public amenity. To help decide this we would consider if planning permission would have been granted for this development had it been the subject of a planning application. The starting point is the Eastleigh Borough Council Local Plan policies. If the development accords with these, we would normally be expected to grant planning permission unless other material considerations, notably Government policy, indicate otherwise.

Enforcement action should always be commensurate with the breach of planning control to which it relates. It will normally be inappropriate to take formal enforcement action against a trivial or technical breach of control which causes no harm to amenity.
 

What is planning harm?

Factors that may contribute to an assessment of planning 'harm' include:

Is it appropriate to take action?

The Council will not rectify all breaches of planning control. Action will only be taken where there is an unacceptable effect on the built and natural environment and public amenity. The Council is required by policies and legislation set by Central Government to decide the appropriateness of formal action. The test is whether the unauthorised activities are causing harm having regard to the development plan policies and other material considerations. This is often referred to as an expediency test.

What are our priorities?

It is not possible to investigate every complaint with equal priority and intensity. Our resource is directed to breaches that cause the greater harm to the environment or to residential amenity. For example, the potential permanent damage to a historic listed building will have a greater priority than a new shed in a residential garden. The scale of priorities is shown below and can change during the course of an investigation:

Our resource is split between investigating reactive complaints received about breaches of planning control and the pro-active condition monitoring of new development sites to ensure compliance with the planning permission granted. If you have a planning permission that requires the discharge of planning conditions prior to the commencement of the development then it is most likely that your site will be selected for monitoring.

How do I make a complaint?

When alerting the Council to a possible breach it is useful for us to have as much information as possible such as:

• description of the possible breach
• date the activity started, is it happening now, is it getting worse?
• site address (if it is a field, describe the surrounding area to help identify the exact site)
• name/address/telephone number of the site owner/occupier/builder/agent
• description of the 'harm' being caused e.g. noise, traffic, smells
• name/address/telephone number of the complainant.

You can report a possible breach of planning control by:

• Using our online form
• email: enforcements@eastleigh.gov.uk
• telephone: 023 8068 3357or 023 8068 8448
• letter: Planning Enforcement Team, Eastleigh Borough Council, Civic Offices, Leigh Road, Eastleigh, Hampshire. SO50 9YN
• in person by visiting the Civic Offices

Anonymous complaints will not usually be investigated unless they relate to a matter of public safety or irreversible public harm.

Confidentiality

All complaints are dealt with in the strictest confidence and details of the complainants will not be made known without their agreement. However, the substance of the complaints themselves is not confidential. In some cases it may be necessary to rely on evidence from complainants in order to take action and you will need to consider whether you are willing to actively assist the Council by collecting evidence and acting as a witness at an appeal or in Court.

Please be aware that we cannot prevent someone correctly guessing who made the complaint against them.

What if someone complains about me?

If you are contacted about an alleged breach of planning control you are entitled to know what the allegation is (but not who made the complaint) and you will be given an opportunity to give your side of the case. Your co-operation may be sought to remedy a breach of planning control, either by removing/ceasing or modifying the unauthorised development or activity. A reasonable period of time will be allowed for you to do this. In some circumstances, you may be invited to submit a retrospective planning application.

The Council will usually give you a chance to put matters right before taking formal action but if the breach is causing serious harm or nuisance to public amenity formal action will not be delayed by protracted negotiation.

Permitted development

Many minor building works, including alterations to a building, certain 'changes of use' and unilluminated signs do not require consent from the Borough Council. If this proves to be the case, no action can be taken.

Whether or not planning permission is required depends on the restrictions and conditions which are detailed in The Town and Country (General Permitted Development Order) 1995 as amended. This can be viewed as a planning permission in its own right. 

Time limits for enforcement action (Lawful Development)

There is a breach but the activity has been going on for so long or the structure has been substantially complete for such a long time that the breach is immune from any enforcement action and the development has become 'lawful' for planning purposes.

The following table shows the timescales:

 How long will the investigation take?

An enforcement investigation can be a lengthy and complex process. The time taken to determine each case will vary depending on the site, the people involved and the type of breach.

On receipt of a complaint the Enforcement Team aim to:

• Allocate a priority and investigating officer within one working day
• Register within 2 working days
• Acknowledge your complaint within 5 working days (advising you of the investigating officer)
  
• Handle the complaint in the strictest confidence (not disclosing the complainant's identity to third parties)
• Carry out the initial site visit for Priority 1 cases on the same or next working day
• Carry out the initial site visit for Priority 2 cases within 10 working days
  
• Carry out the initial site visit for Priority 3 cases within 20 working days
  
• Carry out the initial site visit for Priority 4 cases if necessary following a desktop appraisal
• Provide an update to the complainant at key stages in the investigation and when significant progress has been made
• Advise the complainant and site owner/occupier of the outcome of the investigation and any further action required within 12 weeks

Outcome of the investigation

No breach of planning control is established: The development may be permitted development or is not within the control of planning legislation.

There is a breach of planning control but it is not expedient to pursue: If a technical breach has taken place, for example a house extension that is marginally over permitted development limits then it is not normally worthwhile to take lengthy and expensive enforcement action over something that is causing minimal harm.

The development is lawful: The activity has been going on for so long or the structure has been substantially complete for such a long time that the breach is immune from any enforcement action and the development has become 'lawful'.

Negotiate a resolution with the site owner/occupier: Many people do take the positive steps required to rectify the situation and formal enforcement activity is only necessary in a small number of cases.

Invite a retrospective planning application to regularise the breach: In some cases the most appropriate way to rectify a breach of planning control is to invite a retrospective planning application. This approach is taken when planning officers consider there is a reasonable likelihood that a planning application will be successful in light of relevant planning policies. We will only pursue the submission of a retrospective application if there is a need to control the breach of planning through conditions.

An invitation to submit a retrospective planning application will not prejudice either the subsequent recommendation or the ultimate decision of the Council as each application is considered on its merits.

Take formal enforcement action: If we are unable to negotiate a resolution the Council has the power to take formal enforcement action. The nature of the breach will dictate what route the Council chooses to pursue. Failure to comply with a formal notice leaves the site owner/occupier open to the risk of prosecution. Alternatively, the Council may take direct action to undertake the appropriate works and recover the costs.

What can the public do to help? 

The assistance of the general public is crucial to planning enforcement. Due to the amount of development, both authorised and unauthorised, it would be impossible for the Borough Council to identify all possible breaches of planning control without an army of enforcement officers and at great expense. Many enforcement investigations commence following a complaint from the general public. It is helpful to also contact us when you have any new information.

Who's Who in Planning Enforcement and How to Get in Touch

To contact the Enforcement Team please follow this email link: enforcements@eastleigh.gov.uk  or the direct dial telephone numbers below:

Outside of working hours (this is strictly for emergencies only, such as the felling of a protected tree) If you need to contact an officer in the event of an emergency, please telephone the Council's main telephone number 023 8068 8000 and follow the option menu to obtain the emergency number.