6. Planning enforcement team investigations: our process
6.1 Chart 1 illustrates the typical process for dealing with new planning enforcement cases.
6.2 An initial desktop study will generally be undertaken including including a check of the planning history of the site and consideration given to whether the matter falls to other organisations e.g. Kent County Council to investigate and pursue.
6.3 Following these initial checks, a planning enforcement officer will then conduct a site visit where necessary in accordance with the timescales that are set out in paragraph 5.2 above.
6.4 Under the Town and Country Planning Act (‘TCPA’), council officers have statutory powers to enter land in order to investigate alleged planning breaches of planning control. Site visits will therefore ordinarily be undertaken without prior notice because of the need to obtain accurate, representative and timely evidence of how a site is being used or, in the case of alleged building works, because difficulties in contacting a site manager may significantly delay an investigation moving forward. Officers will make reasonable attempts to alert any persons at the site as to the purpose of their visit and will have council identification.
6.5 If access onto land is impossible without making a prior arrangement then the planning enforcement officer will make contact with the site owner/occupier in order to do so. It should be noted that where admission is refused the council can seek the issue of warrant from the Magistrates Court in order to gain access.
6.6 Our approach is to try and resolve any breaches of planning control through negotiation save for cases where we consider this approach would clearly be inappropriate due to the planning harm that flows from the breach. Negotiated solutions - such as through the submission of retrospective applications - take time and should such negotiations fail to secure an acceptable planning solution then formal enforcement action will need to be considered. The council will not allow negotiations on solutions to become unreasonably protracted.
6.7 There are various possible outcomes of our investigation process;-
(a) NO BREACH EXISTS
For example, a reported unauthorised use has since ceased or, on further investigation, development that has been carried out either proves to be ‘permitted development’ (and so does not require a council planning approval in order to be carried out) or is development that the council considers to be lawful under the TCPA.
Typically, these type of conclusions account for around 40% of the cases that are reported and then investigated;
(b) A BREACH EXISTS AND A RETROSPECTIVE APPLICATION IS STRONGLY ENCOURAGED
In instances where a retrospective application relating to an identified breach would be clearly unacceptable as a matter of planning principle then a retrospective application will not be encouraged. Where that is not the case, a retrospective application to the council will normally be strongly encouraged within a reasonable time period: the council will not, however, give an open ended timescale for this to occur and will not send multiple reminder letters seeking engagement to resolve the breach of planning control.
Landowner/occupiers will be expected to respond to council communications in a timely fashion and identify any practical issues that might result in minor delays with meeting the timescales for submission of a retrospective application to deal with the breach of planning control that exists.
The council will be happy to discuss the content and approach to an intended submission as part of its pre-application service for which a charge is levied. Applicants for retrospective permission/approval will be strongly encouraged to take appropriate professional advice.
Should an application be made but is considered by the council to be ‘invalid’ then the council will expect an applicant to address any deficiencies in the application package in a timely manner so that public consultation may begin and the community and technical consultees can make their views known.
A retrospective application can be a way in which a development that has been carried out without the correct approval can be made acceptable in planning terms by the attachment of planning conditions to any approval that might be given. Likewise, obligations through s.106 agreement may have a role in making a development acceptable.
The planning enforcement team and the planning case officer will liaise as appropriate when a retrospective application is made. This might include making a joint site visit as well as discussion on the potential framing of any necessary planning conditions;
(c) FOLLOWING A RETROSPECTIVE APPLICATION, PLANNING APPROVAL IS GRANTED BY THE COUNCIL
As per paragraphs 5.6 to 5.8 further above, the nature of a decision reached on a retrospective application will dictate what happens next.
If a permission/approval is granted, then the related enforcement investigation may be closed as a breach of control will cease to exist. Alternatively, an investigation may be kept open for a further period in order to allow compliance with the terms of the permission/approval to be monitored by the council: this would be the case if further fine details need to be approved by the council and/or further actions need to be carried out on the site to fully resolve the breach of planning control. Once the necessary monitoring period has ceased then an investigation will be closed;
(d) FOLLOWING A RETROSPECTIVE APPLICATION PLANNING APPROVAL IS REFUSED BY THE COUNCIL
If a retrospective application is submitted but is refused by the council, then the council will normally move to take formal enforcement action as per (e) below;
(e) FORMAL ENFORCEMENT ACTION IS TAKEN – Chart 2 sets out what typically happens when formal enforcement action is taken by the council. If it is clear that a breach of planning control is unacceptable, and cannot be made acceptable, then we will tell the person responsible and, normally, we will give them an opportunity to
put things right within a time period which will be appropriate to the specific context of the case. If they do not, then formal enforcement action will be likely to follow.
(f) THERE IS A BREACH OF PLANNING CONTROL BUT NO RETROSPECTIVE APPLICATION HAS BEEN FORTHCOMING AND A DECISION HAS TO BE TAKEN AS TO WHETHER IT IS 'EXPEDIENT' TO PURSUE A BREACH ANY FURTHER
As per (b) above, we will strongly encourage the submission of applications to deal with a breach of planning control. However, in some cases despite such encouragement no such application will be made to the council. In these circumstances, the council will need to reach a decision as to whether it is expedient to pursue an investigation any further.
It is important to note that just because a breach of control exists it does not automatically mean that formal action will be taken by the council. It is a common misconception that a breach of planning control constitutes a criminal offence and should therefore automatically attract formal enforcement action: this is not the case. Government guidance to local planning authorities in the National Planning Policy Framework clearly sets out that enforcement powers are discretionary.
Minor technical breaches of planning control that have been reviewed and concluded as having only a limited impact may not warrant the council’s time and expense in pursuing formal enforcement action if a retrospective application has not been submitted. In these circumstances, the council will conclude its position and advise you whether an investigation either will be moved forward to formal enforcement action, or, alternatively, that it is not considered expedient for the council to pursue matters any further and the investigation will be closed.
