Failure to comply with a notice
As soon as the compliance period for an Enforcement Notice or a Breach of Conditions Notice (BCN) has passed, we will carry out further investigations to confirm whether the breach is continuing.
When we believe an Enforcement Notice has been fully complied with, we will confirm this to the owner/occupier of the land, and to anyone who has complained about the development or activity. Even after compliance, the notice will remain as a charge on the land to prevent any re-occurrence of the breach.
Further negotiations may be needed for full compliance with the notice. If a criminal offence is suspected, the gathering of evidence during a site inspection may have to be carried out under caution. Interviews would be carried out in accordance with the Police and Criminal Evidence Act 1984 (PACE).
A planning breach only becomes a criminal offence when an owner/occupier fails to comply with the requirements of an Enforcement Notice or BCN.
Failure to comply with an enforcement notice
We take firm action when the requirements of an Enforcement Notice are not complied with. Such action may involve:
- prosecution of the parties concerned in the local courts – depending upon the availability, nature and strength of evidence
- issuing an injunction through the high court
- direct, or 'default' action – we will seek to recover the costs of such action from the persons responsible for the breach
We usually seek to bring the matter to a successful conclusion as quickly as possible through the action in the courts. When someone is found guilty of failing to comply with an Enforcement Notice, the fine may be:
- a maximum of £20,000, if imposed by the Magistrates Court
- unlimited, if imposed by the Crown Court
Prosecutions will continue to be brought until the notice has been complied with.
If an appeal against an Enforcement Notice is lodged with the Secretary of State, the outcome of the appeal will be awaited before we take further action. If an appeal has been considered and found in our favour, compliance with the Enforcement Notice requirements will be firmly pursued.
Failure to comply with a breach of conditions notice
If a BCN has not been complied with, or a breach re-occurs, the party responsible will be asked to state what steps have occurred to secure compliance with the conditions specified in the notice. If no reasonable steps have been taken or any reasonable explanation is not given the council will normally pursue a prosecution.
Failure to comply with a BCN carries a maximum penalty of £2,500. A person may be convicted of a second, or subsequent, offence if they are fined but still fail to comply with the notice. It is for anyone charged with this offence to prove that they had a reasonable excuse for failing to comply.
Prosecutions are carried out in the interests of justice and not solely for the purpose of achieving a conviction. Once we have started taking action in court we may not withdraw, even if the breach of planning control is rectified before the case is heard – particularly if we have incurred significant costs. The matter will be considered in the public interest and on legal advice.
Injunction
In the case of a persistent offence involving unauthorised activity, an injunction may be sought through the County Court or High Court. In these circumstances, more severe penalties may be imposed if the offence continues.
Direct or default action
In certain circumstances we will consider taking direct or default action to remedy a planning breach. This may involve the use of contractors to enter a site and physically remove or put right unauthorised building work.
Such circumstances are likely to arise, for example, when the breach of planning control has not been remedied, despite the imposition of successive fines by the courts. In such cases we will seek to recover our costs, possibly in the form of a charge on the land, which is recoverable at the time of any future sale of the land or property.