Planning Enforcement Protocol

*For the County excluding the area of Pembrokeshire Coast National Park

Adopted by Cabinet on 4th November 2024

Foreward

The integrity of the development management function depends on our readiness to take enforcement action when it is considered expedient to do so. We accept that quick initiation of enforcement action is vital to prevent a breach of planning control from becoming well established and more difficult to resolve. We will not condone wilful breaches of planning law but we will exercise our discretion about taking enforcement action, and action will be taken if it is considered expedient to do so. We recognise the importance of establishing effective controls over unauthorised development and in doing so, support the aims of the Local Authority’s Local Development Plan.
Enforcement action needs to be effective and timely. This means that the Local Planning Au-thority should look at all means available to them to achieve the desired result. In all cases there should be dialogue with the owner or occupier of land, resulting in effective negotiations and resolution which means enforcement action is unnecessary.
In accordance with the advice contained in the Development Management Manual (Section 14, and Annex – Enforcement Tools) and Welsh Office Circular 24/97 (Enforcing Planning Control: Legislative Provisions and Procedural Requirements), the Local Planning Authority should regularly review the effectiveness of their procedural arrangements for planning enforcement and, where necessary, introduce revised arrangements.
This Planning Enforcement Protocol sets a framework for how the Council will normally man-age the complaints it receives and any subsequent investigations into alleged breaches of plan-ning control. It will clearly set out its objectives, the background to planning enforcement and the scope of enforcement powers. It will also set our priorities for responses to complaints and formalise how our customers will be kept up to date in relation to the work being carried out by the planning enforcement team. The Council will follow the Planning Enforcement Protocol unless there are good reasons for departing from it. For example, the Council may depart from the protocol where planning law changes, or to comply with its other legal obligations.

1. Introduction

1.1 This Planning Enforcement Protocol sets out the priorities and procedures for dealing with planning enforcement and compliance issues. It is accepted that ‘effective enforcement underpins the whole Development Management function ensuring that unacceptable development does not prevent the delivery of the vision for the LPA set out in the development plan’ (Development Management Manual para. 14.1.1. Welsh Government, 5th May 2017).

1.2 Pembrokeshire County Council is responsible for planning enforcement in Pembrokeshire for all areas that lie outside of the defined boundaries of the National Park. It recognises the importance of an effective planning enforcement service and has a dedicated team of planning enforcement officers employed to investigate reported breaches of planning control.

1.3 We place great importance on protecting our environment from the harmful effects of unauthorised development.

2. Legislative background

2.1 Planning is about regulating the use and development of land. The legislative context for planning in Wales is detailed in Planning Policy Wales (Edition 12) (Annex A). The primary legislation relating to land use planning and applicable to planning enforcement is;

Town and Country Planning Act 1990 (as amended)
The Planning (Listed Buildings and Conservation Areas) Act 1990 (as amended).
The Planning (Wales) Act 2015

Welsh Government advice and guidance for planning enforcement is detailed in;

The Development Management Manual
Welsh Office Circular 24/97 (Enforcing Planning Control)

2.2 Planning permission is required for all development, defined in Section 55 of the Town and Country Planning Act 1990 (as amended) as:

‘The carrying out of building, engineering, mining or other operations in, over or under land, or the making of any material; change in use of any buildings or other land’.

2.3 Section 171A of the Town and Country Planning Act 1990 (as amended) defines a breach of planning control as:
‘The carrying out of a development without the required planning permission or failing to comply with any condition or limitation subject to which planning permission has been granted’.

2.4 The exception to the above is development included in the Town and Country Planning (General Permitted Development) 1995 (as amended). This order outlines certain developments which do not need planning approval from the Local Planning Authority. These developments are ‘Permitted Development’ subject to meeting specific criteria.

2.5 ‘Responsibility for determining whether proposed development should be granted planning permission rests initially with the LPA; as does the decision on whether unauthorised development should be allowed to continue or should be enforced against. A private citizen cannot initiate enforcement action but may advise the LPA of unauthorised development he or she may believe has occurred’ (Development Management Manual, para. 14.2.1. Welsh Government, 5th May 2017).

2.6 The most common enforcement complaints fall into one of 3 categories:

Development taking place without planning permission (both operational development and material changes of use)
Development not carried out in accordance with plans approved by the granting of planning permission
Non-compliance with the requirements of planning conditions imposed by the granting of planning permission or terms of legal agreements.

2.7 The Local Planning Authority has a duty to investigate allegations of breaches of planning control and it takes this responsibility seriously.

3. Dealing with Breaches of Planning Control

3.1 Not all development requires planning permission. Unauthorised development must be unacceptable with regard to the adopted policies of the Local Development Plan and material planning considerations for the Local Planning Authority to consider formal enforcement action. Development that does require planning permission should comply with the conditions imposed by any permission granted. Failure to comply may result in the consideration of formal enforcement action.

3.2 In providing its enforcement and compliance service, the Local Planning Authority will meet the key objectives of the Development Management Manual Section 14 Annex: Enforcement Tools as they relate to the enforcement process, namely, to be open, fair and transparent in any dealings with both the complainant and the alleged transgressor.

3.3 The Planning Enforcement Team will consider the most appropriate response when investigating enquiries. It may be that matters can be resolved by the co-operation of the landowner/occupier through compliance via negotiation, or by submission of a retrospective planning application for approval. Should a breach of planning control not be resolved, then formal action may be required. In such instances, development that is causing significant harm will be prioritised.

3.4 We will consider taking further action against parties who fail to comply with the requirements of formal notices served on them for breach of planning control. We may consider prosecution, direct action or injunctive relief that may result in a legal charge being registered against the land.

3.5 A limited number of breaches are criminal offences including:

Non-compliance with an Enforcement Notice
Illegal works to a listed building
Illegal display of advertisements.
Unauthorised works to a tree subject to a Tree Preservation Order (TPO)

3.6 Where appropriate, we will be happy to discuss investigations with interested parties, although there will be instances where matters of confidentiality and data protection legislation prevent disclosure. The details of a complainant will remain confidential, and only made public if that complainant agrees to act as a witness to an offence and attend in court.

3.7 The council has a duty of care to all of its employees, and it will not accept its officers being subject to abusive language, threats or unacceptable behaviour.

4. Planning Enforcement Priorities

4.1 Some complaints received by the Local Planning Authority do not have a remedy in planning legislation and/or there may be more effective measures to resolve the enquiry using other means.

4.2 The Local Planning Authority can investigate the following:

The unauthorised change of use of land/buildings
Unauthorised building works
Unauthorised engineering operations
Non-compliance with conditions attached to planning permissions
The display of unlawful advertisements
Listed buildings in conditions of serious disrepair
Internal and external works to listed buildings (and works to physical attach-ments to listed buildings) without consent
The condition and appearance of buildings and/or land which is considered det-rimental to the amenity of an area
Demolition
Any activity giving rise to direct or indirect damage to trees protected by a Tree Preservation Order (TPO) or unauthorised hedgerow removal

4.3 The Local Planning Authority is unlikely to have effective remedy in relation to:

Boundary walls disputes and land ownership issues that are civil matters outside of the remit of planning legislation
Breaches of legal covenants
Perceived devaluation of property
Obstruction, parking, traffic enforcement and any other matters affecting the Public Highway*
Graffiti and anti-social behaviour*
Dangerous structures*
Noise nuisance*
Potential breaches of planning control that may occur in the future
Odour issues*
Wildlife habitat issues*

* Please see useful contacts section

If the matter reported is outside of the powers of the Local Planning Authority, the complainant will be informed as soon as practicable with the reasons as to why no action can be taken, and advised, if appropriate and known, of any other body they should contact.

When a complaint is received relating to a planning enforcement matter within the powers of the Local Planning Authority, it will be allocated a priority status based on the following criteria:

Priority 1

Unauthorised development which causes serious immediate and irreparable harm to the environment or public amenity to include:

Unauthorised listed building works, demolition of important unlisted buildings in a Conservation Area, significant unauthorised works to a Scheduled Ancient Monument, unauthorised development at a Site of Special Scientific Interest (SSI), unauthorised works to a tree subject to a Tree Preservation Order (TPO) or tree in a Conservation Area, works likely to be harmful to public safety or compromise highway safety.
The Local Planning Authority will carry out an initial site visit for priority 1 investigations within 1 working day.

Priority 2

Unauthorised development to include:

Breaches of planning control contrary to the policies of the Local Development Plan, instances where the time limit for taking formal action is close to expiry, complaints of significant harm being caused to amenity, commencement of development in non-compliance with the conditions of a planning permission, the display of illegal advertisements that have a significant detrimental impact on highway safety or visual amenity, works resulting in landscape harm to sensitive designations.
The Local Planning Authority will carry out an initial site visit for priority 2 investigations within 10 working days.

Priority 3

Unauthorised development including:

Minor breaches of planning conditions (unless covered above), unauthorised minor development and changes of use not immediately giving rise to significant amenity concerns, illegal display of advertisements (unless covered above), untidy land, all other complaints.

The Local Planning Authority will carry out an initial site visit for priority 3 investigations within 15 working days if considered necessary following a desktop appraisal.

4.4 On receipt of a planning enforcement complaint the Local Planning Authority will:

Acknowledge and register all complaints within 5 working days and provide the complainant contact details of the officer dealing with the investigation
Carry out a desk top assessment of any planning history and site constraints
Carry out the initial site visit in accordance with the timescales provided above and gather information to reach a recommendation and conclusion
Provide a progress update on the investigation to the complainant at the following key stages:
12 weeks from receipt of complaint
When a planning application has been submitted to the Local Planning Authority
When a recommendation to pursue formal enforcement action has been agreed
When a formal notice has been served
When an appeal or any other court action has been lodged
When the investigation reaches a conclusion

5. How to report a breach of planning control

5.1 Enforcement complaints and alleged breaches of planning control can be made by the following ways:

submission of the planning enforcement complaint form on the Pembrokeshire County Council website
e-mail addressed to – planningenforcement@pembrokeshire.gov.uk
telephone: 01437 764551

5.2 Information we will require to register an investigation:

Name and contact details of complainant
Address or location of the alleged breach
Description of the alleged breach
Any other supporting information that may assist the investigation. This could include photographs, plans, sketches or diary evidence (dates, times and hours of operation)
Details of the transgressor (if known)

5.3 Whilst a complainant’s identity will be protected, the success of any subsequent enforcement action may be dependent on the willingness of the complainant to co-operate in the giving of evidence at an appeal or at court.

6. The Investigation

6.1 On receipt of a planning enforcement complaint the Local Planning Authority will:

Acknowledge and register all complaints within 5 working days and provide the complainant contact details of the officer dealing with the investigation
Carry out a desk top assessment of any planning history and site constraints
Carry out the initial site visit in accordance with the timescales provided in section 4 above and gather information to reach a recommendation and conclusion
Provide a progress update on the investigation to the complainant at the following key stages;
12 weeks from receipt of complaint
When a planning application has been submitted to the Local Planning Authority
When a recommendation to pursue formal enforcement action has been agreed
When a formal notice has been served
When an appeal has been lodged or any other court action
When the investigation reaches a conclusion

6.2 An investigation can be a time consuming, complex and lengthy process. The time taken to determine each case can vary depending on the site and type of breach that has been reported. The time taken may depend on many factors which are outlined below:

Availability of evidence
Constraints to site access
Awaiting the submission and/or outcome of a planning application or appeal
Awaiting compliance with a formal notice
Lengthy negotiations to achieve an acceptable outcome
Complex legal matters

6.3 If there is no unauthorised development or no breach in planning control established, then the case will be closed with the reason for closure recorded.

6.4 If it is found that a breach of planning control has occurred, a recommendation on progression of the investigation will be made.

6.5 In some circumstances, a breach of planning control may be established, but it is not considered expedient for the Local Planning Authority to pursue formal enforcement action. When considering enforcement action, the decisive issue for the Local Planning Authority ‘should be whether the unauthorised development would unacceptably affect public amenity or the existing use of land and buildings meriting protection in the public interest. Enforcement action should be commensurate with the planning impacts caused by the unauthorised development; it is usually inappropriate to take formal enforcement action against a trivial or technical breach of control which causes harm to public amenity. The intention should be to remedy the effects of the unauthorised development, not to punish the person(s) carrying out the operation or use. Nor should enforcement action be taken simply to regularise development for which permission had not been sought but which is otherwise acceptable’. Development Management Manual (para 14.2.3).

7. Taking Action

7.1 Where a planning breach has been established, the Local Planning Authority will attempt to resolve the breach by discussion and negotiation. This is often the quickest and most effective way of resolving breaches, as formal action can be a lengthy process.

7.2 If the development is considered acceptable with regard to the policies of the adopted Local Development Plan, the Local Planning Authority may request that the owner/occupier submit a retrospective planning application for the unauthorised development in accordance with section 73A of the Town and Country Planning Act
1990 (as amended). Although a local authority may request a retrospective planning
application be submitted, it does not mean that planning permission will be granted, and the application will be considered on its own merits and evaluated against the policies of the Local Development Plan.

7.3 The Local Planning Authority may not invite the submission of a retrospective application if it is considered that the unauthorised development conflicts with the adopted policies of the Local Development Plan. Notwithstanding, the transgressor has the right to make an application (unless limited circumstances apply).

7.4 The Local Planning Authority may conclude that due to the passage of time that unauthorised development may be immune from formal planning enforcement action. For building operations and material changes of use to a single dwelling house, immunity can be established after 4 years. For all other material changes of use, breach of conditions and display of advertisements, immunity can be established after 10 years.

7.5 If it is considered that the unauthorised development has likely achieved immunity from enforcement action, the transgressor may be able to apply for a Lawful Development Certificate. If granted, the lawful development certificate would confirm that the unauthorised development is immune from planning enforcement action.

7.6 If immunity cannot be established, negotiations fail, a retrospective application is not forthcoming or is refused, or the unauthorised development is having a significant impact on amenity or the environment, the Local Planning Authority may consider taking formal enforcement action.

8. Planning Enforcement Tools

There are number of tools provided by legislation that help determine whether development is unauthorised and enable a local planning authority to take action where appropriate.

a) Planning Contravention Notice

A PCN is used to ascertain information that, in some circumstances, it is not possible to establish from the site visit or details of the complaint.

Furthermore, any formal notice must be served on all parties with an interest in the land. In such instances a Planning Contravention Notice will be served.

A PCN requires the recipient to provide information requested relating to any alleged breach within 21 days.

The penalty for non-compliance is a maximum of £1,000. A second conviction for continuing non-compliance can be imposed through a daily fine.

Deliberately providing false information relating to a Planning Contravention Notice can lead to a fine of up to £5,000.

There is no right of appeal against a Planning Contravention Notice, other than an application to the High Court for a judicial review.

b) Requisition for Information Notice (Section 330 Notice)

A Section 330 notice requires the recipient to provide information about the ownership of the property and of any other person who may have an interest in it.

Failure to respond to one of these notices is a criminal offence punishable in the Magistrates’ Court with a fine of up to £1,000.
A false statement given in response to the notice is punishable, upon conviction in the Magistrates’ Court, with a fine of up to £5,000 or in the Crown Court, with a fine, imprisonment, or both.

c) Breach of Condition Notice

This notice is an alternative to an Enforcement Notice for remedying a breach arising from the failure to comply with any condition or limitation subject to which planning permission has been granted.

It is not a legal charge on the land and can only be served on the person responsible for the breach.

It can be mandatory (requiring something to be done) or prohibitive (requiring something to stop).

It will specify a period of compliance which cannot be less than 28 days.

Failure to comply can lead to a fine of up to £1,000.

There is no appeal against such a notice.

d) Enforcement Warning Notice (EWN)

The EWN is intended for use where this Authority considers that an unauthorised development could potentially be made acceptable with control, through a retrospective application and the use of conditions.

The EWN will not be issued in situations where this Authority does not reasonably expect that planning permission will be granted. However, it should be noted that new issues may come to light, or despite a recommendation for approval, the development management committee could disagree with the recommendation.

The EWN must specify the alleged breach and specify the steps to be taken to remedy the breach within a specified timetable and it must be served on all parties who have an interest in the land.

The EWN must state that unless an application for planning permission is made within a period specified in the notice, further enforcement action may be taken.

This is because the issuing of an EWN constitutes the taking of enforcement action under Section 171A of the 1990 Act, allowing the authority to take further enforcement action in respect of the breach within four years of the initial notice being issued.

There is no right of appeal against an EWN, other than through application to the High Court for judicial review. However, if a retrospective application is submitted because of the EWN, an applicant does have the right to appeal either the refusal of planning permission, or the subsequent service of an enforcement notice.

e) Enforcement Notice

This notice, when issued, must specify the alleged breach and specify the steps to be taken to remedy the breach within a specified timetable and has to be served an all parties who have an interest in the land.

This may mean serving on the mortgagee i.e. the Bank or Building Society which lent the money to purchase the property, or other family members who similarly have an interest in the property.

The Notice can either refer to a Change of Use of the land or to an operational development.

There is a right of appeal, within 28 days of the service of the notice, and there are seven grounds on which that appeal can be based. These grounds are listed at the end of this section.

If the requirements of the notice are not met, and no appeal has been lodged or any appeal has been dismissed, then the responsible person may be prosecuted.

f) Stop Notice

Having served an enforcement notice, the Authority may consider that any ongoing breach is so serious that it should cease immediately. In such cases a Stop Notice will be served.

Failure to comply with a Stop Notice can lead to an unlimited fine.

There is no right of appeal against a Stop Notice, other than through application to the High Court for judicial review.

The serving of a Stop Notice may give rise to the obligation to pay compensation.

g) Temporary Stop Notice (TSN)

A TSN does not have to be issued with an enforcement notice and their effect is immediate.

A TSN ceases to have effect after 28 days and is only issued when this authority believes that the breach should be stopped immediately.

Failure to comply with a Temporary Stop Notice can lead to an unlimited fine.

There is no right of appeal against a Temporary Stop Notice, other than through application to the High Court for judicial review.

h) Advertisement Discontinuance Notice

Where an unauthorised advertisement causes substantial injury to the amenity of a locality or a danger to members of the public, Local Planning Authorities can serve a Discontinuance Notice to require the removal of the notice.

i) Injunctions

If warranted, Local Planning Authorities can apply to the High Court or the County Court for an injunction at any stage of the enforcement process.

Again, it can be mandatory or prohibitive and normally the “test” for taking such a step is that nothing short of that action would be effective.

j) Section 215 Notice

If it appears to the Authority that the condition of a property or land adversely affects the amenity of the area, then the above can be served identifying the reasons as to why it is considered that the condition is detrimental and the steps necessary to remedy the situation.

Alternatively, the authority can consider carrying out necessary remedial works itself and seek to recover its costs from the owner.

There is a right to appeal to Planning & Environment Decisions Wales (PEDW) on any Section 215 Notice served by this authority.

k) Urgent Repairs Notice

This requires necessary works to a listed building, which should only relate to the overall integrity of the building, and can be served on all interested parties in respect of an unoccupied building.

l) Repairs Notice

This can be served in respect of an occupied listed building, which, in the opinion of the Local Planning Authority, is not being properly maintained.

This can lead to compulsory acquisition by the Authority of the subject building to ensure that it is properly maintained.

Similarly, there is legislation which empowers the Planning Authority to take action on mineral sites or where Tree Preservation Orders have been ignored.

m) Discontinuance Notice

Served if, having regard to the development plan and to any other material considerations, it appears to a Local Planning Authority that it is expedient in the interests of the proper planning of their area (including the interests of amenity) that any use of land should be discontinued or that any conditions should be imposed on the continuance of a use of land, or that any buildings or works should be altered or removed.

n) Revocation Order

This can be served if, having had regard to the development Plan and any other material considerations, it appears to the Local Planning Authority that it is expedient to revoke or modify any permission to develop land granted on an application.

Non-compliance

If any of the above Notices are not complied with, then the Local Planning Authority will usually seek prosecution in the Magistrates’ Court. Before embarking upon prosecution, it must be satisfied that there is enough evidence and that prosecution is in the public interest.

Failure to comply with Enforcement Notices constitutes a criminal offence. In addition, the carrying out of unauthorised works to Listed Buildings and demolition of unlisted buildings in a conservation area are also criminal offences. Unauthorised works to protected trees and non-protected trees in a conservation area is a criminal offence. There are powers to prosecute persons who illegally display advertisements. The Local Planning Authority has the power to remove/obliterate illegally displayed advertisements in the form of placards and posters.

o) Direct Action

Where the requirements of an Enforcement Notice or a Section 215 Notice have not been complied with, it is open to the Local Planning Authority to enter land and take the steps to remedy the harm and recover from the owner of the land any expenses incurred.

p) Injunction

Where there is clear evidence that a breach of planning control is anticipated and that the impact of that breach is likely to be serious and cause significant harm, then the Local Planning Authority can apply to the Court for an injunction. This remedy can also be used where an Enforcement Notice is not complied with and where direct action or prosecution would not offer an effective solution.

q) Proceeds of Crime Act (POCA)

Where an operator has benefited financially from unlawful developments and has sufficient achievable assets, the Council may seek an application under the POCA legislation to allow for the confiscation of assets equivalent to the value achieved through the unlawful development.

9. What if I am the subject of a planning enforcement investigation?

9.1 If you receive a letter or a visit from a planning enforcement officer then we would encourage you to co-operate by responding to requests for information. The Local Planning Authority will not reveal the details or identity of the complainants(s). Whilst on site, officers may ask questions of any present occupiers and may take photographs or record measurements. The investigating officer will confirm as soon as practicable whether or not a breach of planning control has occurred, and in cases where it is established that no breach of planning control has occurred the matter will usually be resolved quickly. In cases where a resolution may be negotiated, the investigating officer will be happy to engage in discussions. However, we will not accept undue delays to required actions or responses during negotiations and will expect a response within given timeframes. In some cases, the unauthorised development or activities will not be considered acceptable and you may be requested to cease identified activities or remove development in order to avoid formal enforcement and/or legal action being taken. You may also wish to seek independent advice.

Planning Appeals

A transgressor will have the following avenues of appeal:

under Section 78 of the Town and Country Planning Act 1990 (as amended) against the Local Planning Authority’s decision to refuse planning consent (if applicable),
under Section174 of the Town and Country Planning Act 1990 (as amended) against an Enforcement Notice.

Section 174(2) of the 1990 Act, sets out seven different grounds under which an enforce-ment appeal may be lodged, with these grounds being:

(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged

(b) that those matters have not occurred

(d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters

(e) that copies of the enforcement notice were not served as required by Section 172

(f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach

(g) that any period specified in the notice in accordance with Section 173(9) falls short of what should reasonably be allowed.

Enforcement register

9.2 The Local Planning Authority has a duty to hold and maintain an enforcement register as outlined under section 188 of the Town and Country Planning Act 1990 (as amended).
Notices contained in the register are:

Enforcement Notices
Breach of Condition Notices
Stop Notices

This is a public register and can be accessed by contacting the Local Planning Authority.

10. Useful contact details

The Planning Enforcement Team

Pembrokeshire County Council
County Hall
Freemans Way
Haverfordwest
SA61 1TP
E–Mail: PEnforcementteam@pembrokeshire.gov.uk
Tel: 01437 764 551

Website: Pembrokeshire County Council Website

Building Control

The Building Control section deals with applications submitted in relation to Building Regulations and with demolitions and dangerous structures.
Building Regulations deal with the minimum standards of design and building work for the construction of domestic, commercial and industrial buildings. In addition, they set out the definitions of what is regarded as 'building work' and the procedures for ensuring that it meets the standards laid down.
Email: Building.control@pembrokeshire.gov.uk
Tel: 01437 776 190