Formal actions in planning enforcement
On this page you can find a brief explanation of the legal notices we might serve when dealing with breaches of planning control:
- Request for Planning Application Notice
- Breach of Condition Notice
- Enforcement Notice
- Temporary Stop Notice
- Stop Notice
- Amenity Notice
- Interim Interdict
- Direct Action
- Advertisement Enforcement
This is 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.
This notice requires the person receiving it to comply with a previously approved condition that was attached to a planning permission. It is effective from the date it is served. It may be used as an alternative to an Enforcement Notice 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 against this notice.
An Enforcement Notice lays down steps which must be taken within a set timescale, to ensure that the terms specified in the notice are complied with. The terms of the notice take effect no less than 28 days after having been served). There is a right of appeal and the terms of the notice are suspended until a decision on the appeal has been reached by a reporter appointed by the Scottish Government. There are separate Enforcement Notices for service in relation to listed buildings, trees and advertisements but the legal procedure is the same as for an Enforcement Notice. Failure to comply with an Enforcement Notice within the time specified is an offence, and may lead to direct action or the matter being referred to the courts.
These notices are served where unauthorised works are required to stop with immediate effect due to the resultant or prospective detriment that the works would cause to public safety. They are valid for up to 28 days and are effective from the time they are served. This allows the council 28 days before a formal Enforcement Notice and Stop Notice, if still necessary, requires to be served. There is no right of appeal.
A Stop Notice is used in urgent or serious cases where public safety and related issues are of immediate concern. This is served at the same time as an Enforcement Notice. The stop notice comes into effect 3 days after having been served and it details the steps which must be taken immediately to comply with the notice. If a Stop Notice is served without due cause, or a subsequent appeal against a parallel Enforcement Notice is upheld, the council may be liable to claims for compensation.
This requires the person receiving this notice to tidy up a piece of land which has become untidy or unkempt. This does not relate to garden ground which has become overgrown or other such minor instances of untidiness.The impact on the amenity of the surrounding area needs to be extremely serious in the councils opinion to justify such a notice being served. There is a right of appeal against an Amenity Notice.
Interim Interdicts and Interdicts are applications made direct by the council to the Sheriff Court in order to stop an alleged unauthorised development or activity and are used in cases of extreme urgency or importance. Court proceedings can prove costly and the council normally only seeks interdicts in very serious cases for example 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.
Where a notice has not been complied with the council may decide to undertake the works necessary to rectify a breach of planning control themselves and seek to recover the costs involved from the owner(s) of the land or buildings. The taking of direct action would normally be a last resort and remedying the breach would require to be in the wider public interest. Efforts to resolve the breach would normally require to have been exhausted before direct action is considered, especially where there is expected to be considerable upfront costs.
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 seeks to remove advertisements which do not have consent
- discontinuance notice allows us to challenge a consented display which is no longer considered acceptable
- removal or obliteration notice allows us to remove or obliterate placards or posters or banners