Monitoring and Enforcement Plan
Contents
1. Introduction
1.1 Devon County Council’s Planning Role
1.1.1 Devon County Council [DCC] is the planning authority responsible for minerals and waste development in the administrative county of Devon (excluding Plymouth, Torbay and the National Parks of Dartmoor and Exmoor), together with development undertaken by the Council. In undertaking this role, DCC carries out the following functions, the final two of which are addressed in this document:
- preparation and adoption of planning policy in the form of the Devon Minerals Plan and Devon Waste Plan, together with input to the Local Plans being prepared by other planning authorities;
- determination of planning applications for minerals, waste and DCC development;
- monitoring of minerals and waste sites; and
- enforcement of planning control relating to minerals and waste development.
1.1.2 The enforcement of planning control for all forms of development other than minerals and waste, including development carried out by the County Council, is the responsibility of Devon’s district councils.
1.1.3 DCC’s monitoring and enforcement functions are undertaken by, or on behalf of, the Development Management team within the Planning, Transportation & Environment service.
1.2 Purpose and Scope of the Monitoring and Enforcement Plan
1.2.1 This Monitoring and Enforcement Plan has been prepared in response to the paragraph 58 of the Government’s National Planning Policy Framework [February 2019], which recommends that a local planning authority:
“should consider publishing a local enforcement plan to manage enforcement proactively, in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where appropriate”.
1.2.2 The Plan is intended to provide guidance to a range of people who may become involved in DCC’s monitoring and/or enforcement activities, including:
- operators of minerals and waste management sites;
- landowners or other parties undertaking minerals or waste development potentially in breach of planning control;
- legal and other professional representatives of the above; and
- members of the public and representatives of local communities.
1.2.3 This Plan replaces DCC’s previous Local Enforcement and Monitoring Plan that was published in June 2014 and incorporates changes to legislation and guidance that have occurred since that date.
1.2.4 The Monitoring and Enforcement Plan is structured as follows:
Chapter 2 explains how DCC undertakes the programmed monitoring of minerals and waste sites including arrangements for charging for visits and reporting
Chapter 3 identifies the principles for undertaking enforcement activity, including issues of expediency, material considerations, confidentiality and prioritisation
Chapter 4 explains how potential breaches of planning control are investigated, including means of reporting breaches, evidence gathering and consideration of occurrence of a breach
Chapter 5 outlines the potential methods of resolving breaches of planning control, including through negotiation, submission of a planning application and the use of formal powers including notices and prosecution.
Appendices outline the roles of other regulatory bodies and sources of further guidance
2. Monitoring of Mineral and Waste Sites
2.1 Scope of the Monitoring Function
2.1.1 Unlike many other forms of development, mineral working and waste management are often long-term activities that may continue for decades, with the characteristics of a site and its operations changing over time. Specific legislation therefore makes provision for the regular inspection of mineral and waste sites to enable the planning authority to monitor their ongoing development and compliance with their planning permissions.
2.1.2 Under regulations[1] first introduced in 2006, planning authorities have been able to charge a fee for a monitoring visit to a mineral or landfill site, and DCC has a structured programme of visiting all such sites on at least an annual basis. These visits help to maintain a constructive relationship with site operators, enable potential issues of non-compliance to be identified and resolved at an early stage, and provide a robust reporting framework that is available for reference by operators and local communities.
2.1.3 While the provision for chargeable visits to mineral and landfill sites is discretionary, Regulation 19 of the Waste (England and Wales) Regulations 2011 places a requirement on a waste planning authority to “ensure that appropriate periodic inspections of those establishments or undertakings [carrying on disposal or recovery of waste] are made”. While inspections of landfill facilities can be charged for under the provision outlined in 2.1.2, the costs of visits to other forms of waste recovery and disposal sites must be met from the Council’s resources.
[1] Currently the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012 [as amended]
2.2 Monitoring of Mineral and Landfill Sites
Programme for Monitoring Visits
2.2.1 The Fees Regulations allow a planning authority to charge for a maximum of eight visits to an operational mineral or landfill site in any one year, or one visit to an inactive site (although additional visits can be made without being charged for). Based on DCC’s experience of site monitoring since 2006. The large majority of Devon’s site do not warrant more than one or two annual monitoring visits, although the frequency of visits to a specific site may need to be increased if significant breaches of planning control are identified.
2.2.2 DCC prepares an annual programme of monitoring visits to mineral and landfill sites, with the number of visits for each site being based on its size and complexity, the stage at which operations are at, the sensitivity of its surroundings to adverse impacts, and any previous history of complaints or breaches of planning control. The number of visits to a specific site may be increased or reduced in the light of the outcomes of the previous year’s visits.
2.2.3 The maximum number of visits for each site will be notified to the operator by 31 March each year for the subsequent 1 April to 31 March period. Any additional visits above the notified number, for example in response to complaints, will not be charged for.
Procedure for Monitoring Visits
2.2.4 Arrangements for each scheduled monitoring visit will be made with the site operator in advance to ensure their attendance. The DCC Planning Officer conducting the visit may be accompanied by one or more DCC colleagues (e.g. ecologist, archaeologist or other specialist) where warranted by the characteristics of the site or stage of operations.
2.2.5 While the format of the monitoring visit may vary due to the characteristics of the site, it will normally include:
- a tour of the site to include active operations and other parts that may have changed since the previous visit, e.g. through restoration, with photographs taken by the Planning Officer;
- a review of compliance with planning conditions, legal agreements and approved drawings/documents;
- a review of progress in addressing any issues of non-compliance identified at or since the previous visit;
- identification of any new compliance issues and necessary remedial action; and
- discussion of any anticipated changes to the operation of the site that may require variation of planning permissions or new applications.
2.2.6 Following a monitoring visit, the Planning Officer will prepare a draft Monitoring Report with a record of the inspection and discussions, together with any actions required, and forward this to the operator. Subject to any comments by the operator, a final report will be completed and published on DCC’s website at https://www.devon.gov.uk/planning/monitoring.
2.2.7 Upon completion of the final Monitoring Report, the operator will be provided with an invoice for payment of the monitoring fee.
2.3 Monitoring of Other Waste Sites
2.3.1 As indicated in 2.1.3, DCC is required to carry out periodic inspection of all waste recovery and disposal sites, in addition to the chargeable landfill site monitoring visits. While limitations on the Council’s resources mean that mineral and landfill sites will be prioritised, it will maintain a targeted programme of visits to other waste sites.
2.3.2 Other waste sites that are programmed for periodic visits will include sites that have generated complaints and/or enforcement action, together with other facilities that, due to their scale and/or the nature of their operations, have the potential for adverse impacts on their local communities and environment. Examples of such facilities would include recycling of construction and demolition waste; processing of timber, large-scale composting; anaerobic digestion; and transfer of non-hazardous wastes.
2.4 Local Liaison Groups
2.4.1 Around 10 of Devon’s larger mineral and waste sites have a Local Liaison Group that meets regularly to facilitate engagement between the site, operator, the County Council and other regulatory bodies, and local communities represented by town/parish councillors.
2.4.2 These groups allow any concerns of the local community to be discussed and enable the site operator to seek informal input on their future development proposals. The DCC Planning Officer will report to the group on the outcomes of any recent monitoring visit.
3. Enforcement: Principles
3.1 The Public Interest
3.1.1 A fundamental principle of the planning system in England is that it should act in the public interest, and this applies to enforcement activity as much as to the determination of planning applications and preparation of development plans. It is not the role of DCC to protect the private interests of one party against those of another, unless these also coincide with the public interest. The Council therefore cannot intervene in private civil disputes such as breaches of restrictive covenants, boundary disputes or disputes that relate solely to damage to or reduction in value of land or property. Nor is it the role of planning enforcement to act punitively against breaches of planning control, to punish minor or trivial breaches which do not demonstrably harm the public interest.
3.1.2 The council will need to ensure that any responses to breaches of planning control are proportionate and have regard to the extent to which the public interest is protected by a decision to take formal action or not to act.
3.2 Duty and Discretion
3.2.1 Local planning authorities such as DCC have a duty to investigate alleged breaches of planning control, and anyone reporting an alleged breach to the Council is entitled to expect that the matter will be investigated in a timely and professional manner and the outcome communicated to them.
3.2.2 In investigating an alleged breach of planning control, DCC will firstly need to establish whether a breach has occurred. If it is concluded that there has been a breach, the Council is entitled to use its discretion on the appropriate course of action based on the principles outlined in this section, notably the public interest and expediency. It is important to note that DCC is not obliged to undertake formal enforcement action in the event of a breach being identified if that is not considered to be the appropriate route, and that it has the discretion to pursue other options including negotiation or recommending submission of a planning application. The potential options for resolving a breach are explained in more detail in Chapter 5.
3.3 The Development Plan and Material Considerations
3.3.1 DCC has adopted a Minerals Plan and a Waste Plan to provide the policy context for its decisions on minerals and waste development In addition Devon’s district councils have adopted Local Plans, and neighbourhood planning bodies such as town and parish councils have made Neighbourhood Plans, and these also form part of the statutory ‘Development Plan’ to which DCC must have regard.
3.3.2 In exercising its enforcement powers, DCC is obliged to have regard to the collective documents that form the Development Plan, which can inform consideration of principle of public interest and expediency. When considering the issue of a formal Enforcement Notice, S172 of the Town and Country Planning Act 1990 places an explicit duty on the Council to “have regard to the provisions of the development plan and to any other material considerations”.
3.3.3 The term ‘material considerations’ can include planning policy documents outside of the Development Plan such as Supplementary Planning Documents, together with national planning guidance in the form of the National Planning Policy Framework, the National Planning Policy for Waste and Planning Practice Guidance. In addition, there are a wide range of potential impacts from development that can be ‘material considerations’ in exercising enforcement powers, including (but not limited to) the generation of noise, dust or odours; loss of privacy or light; traffic levels and highway safety; damage to the fabric or setting of heritage assets; direct or indirect harm to wildlife species, habitats or designated sites; and loss of flood storage capacity or impedance of water flows.
3.4 Expediency
3.4.1 In deciding whether to pursue formal enforcement action, including service of an Enforcement Notice, Stop Notice or Temporary Stop Notice, a local planning authority must consider whether it is expedient to do so, reflecting the discretionary, rather than mandatory, nature of the legal powers that are available.
3.4.2 In exercising the principle of expediency in resolving breaches of planning control, DCC will consider the following factors:
- the degree of harm to the environment and/or local community resulting from the breach;
- the scope for the breach to be resolved through negotiation;
- the likelihood for planning permission to be granted if a planning application were to be submitted for the unauthorised development;
- the acceptability of the development in terms of the Development Plan and other material considerations; and
- the availability of powers of other regulatory agencies that may be capable of resolving the breach [see Appendix 3].
3.4.3 Factors that will not influence the Council’s judgement on the expediency of pursuing enforcement action include the weight of public opinion alone, the availability of staff resources or an intention to use formal action as a punishment. An assessment of expediency will be included in the Planning Officer’s report into reported breaches.
3.5 Prioritisation
3.5.1 All allegations of a breach of planning control that fall within DCC’s jurisdiction will be registered and an acknowledgement provided to the complainant(s). To ensure the most efficient use of Council resources, alleged breaches will initially be assessed for priority for investigation to ensure that cases with the greatest potential to cause harm will be addressed first. Highest priority will be given to allegations of activity that may cause irreversible or serious ongoing harm to the environment and/or local community.
3.6 Confidentiality and Communication
3.6.1 Please note: the advice provided below is subject to the provisions of the General Data Protection Regulation and Environmental Information Regulations relating to requests for information.
3.6.2 DCC encourages the reporting of suspected breaches of planning control and will treat the identity and personal details of a complainant as being strictly confidential. However, complainants should be aware that the receipt and nature of an alleged breach will be communicated to the individual or organisation that is the subject of the complaint.
3.6.3 Anonymous complaints will not be investigated other than in exceptional cases where serious environmental or public harm is apparent.
3.6.4 Commercially sensitive information that may be provided by a person or organisation suspected of a breach of planning control will be treated as being confidential and not communicated to a complainant.
3.6.5 DCC will ensure that anyone reporting a potential breach is informed of any formal enforcement action that may arise from the Planning Officer’s investigation and is notified of any subsequent planning applications or appeals that may be submitted. The Council will also communicate the receipt of an alleged breach to the owner or occupier of the land affected and provide them with the opportunity to provide information on the nature of their activity and to respond to the allegation.
4. Enforcement: Investigating Reported Breaches
4.1 Reporting of Breaches
4.1.1 DCC encourages the reporting of suspected breaches of planning control by members of the public or representative bodies such as town and parish councils and County Councillors. As development can gain immunity from enforcement action over time, it is important that any suspected breaches are reported as soon as possible in order that harmful development can be removed or minimised.
4.1.2 The most convenient means of reporting an unauthorised development or other potential breach is through the online reporting facility on DCC’s planning website at https://www.devon.gov.uk/planning/enforcement. Other methods of communication available are:
Email: planning@devon.gov.uk
Post: Development Management
Planning, Transportation & Environment
Devon County Council
Lucombe House
County Hall
Exeter
EX2 4QD
Phone: 01392 383000 (ask for Planning)
4.1.3 When reporting a potential breach, the complainant’s name, address and contact details will be required, together with the following information where available:
- the address or location where the suspected breach is taking place;
- the nature of the activity being reported;
- how long this activity has been taking place; and
- details of the landowner or other person(s) such as contractors or hauliers responsible for the breach.
4.1.4 As indicated in 3.6.1, the identity of persons reporting a breach and the information that they provide will be treated in confidence. DCC may contact the complainant to seek clarification of the information provided or seek further information.
4.1.5 In addition to reports from members and representatives of local communities, DCC Planning Officers may be alerted to possible breaches by other regulatory agencies such as the Environment Agency or District Councils, while Officers may also identify breaches during the course of monitoring mineral and waste sites.
4.2 Initial Investigation of a Reported Breach
Evidence Gathering
4.2.1 On receipt of a report of a breach of planning control, the Planning Officer will check DCC’s records to establish whether the site has been investigated previously or has been the subject of a planning application to either DCC or a District Council. Reference may also be made to sources of information such as Environment Agency records of waste permits, aerial photographs and Land Registry records.
4.2.2 Where the location of the breach is an operational mineral or waste site, reference will be made to recent monitoring reports, and early contact will be made with the site operator to discuss the alleged breach.
4.2.3 It may be apparent at this early stage that the activity being reported is outside the control of DCC Planning Officers – for example, it is a type of development that falls under the control of a District Council, or is clearly not ‘development’ and falls to be dealt with by another regulatory body. In such cases, DCC will refer the matter to the appropriate organisation and notify the complainant accordingly.
Site Visit
4.2.4 Most reported breaches will require the Planning Officer to visit the site to establish the type and scale of activity that is alleged to be taking place. In the interests of timely investigation, most site visits are undertaken without prior arrangement with the landowner.
4.2.5 A Planning Officer or other person authorised by DCC has the right, under S196A of the Town and Country Planning Act 1990, to enter any land at a reasonable hour to establish whether a breach of planning control has occurred on that land. This right entitles the Planning Officer to inspect the land in the absence of the landowner or occupier.
4.2.6 The purpose of the site visit is to obtain the necessary information to enable the Planning Officer to establish whether a breach of planning control has occurred and, if so, to record sufficient information to allow the Officer to consider the appropriate means of resolving the breach. This information may include information from the landowner or occupier if present, sketches and annotated maps of the site and its surroundings, and photographs.
4.3 Outcome of the Initial Investigation
4.3.1 The information gathered through desk-top sources and the site visit will enable the Planning Officer to establish whether a breach of planning control has occurred and, if so, inform the choice of action to resolve the breach [see Chapter 5]. The key questions to be answered at this stage are set out below.
Is the activity being investigated ‘development’?
4.3.2 For a breach of planning control to have occurred, the activity being undertaken should fall within the definition of ‘development’ provided by S55 of the Town and Country Planning Act 1990:
“the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change of use of any buildings or other land”.
4.3.3 Examples of activities that do not normally amount to ‘development’ include the spreading of sewage sludge on agricultural land, and the use of waste materials such as rubble to maintain an existing track. For some activities using waste materials, a judgement will need to be made as to whether the quantity is limited to what is reasonably required, as excessive use could lead to the primary activity being the deposit of waste which would be regarded as ‘development’[2].
4.3.4 Types of development that are commonly investigated by DCC include:
- the quarrying of stone for sale without planning permission;
- the unauthorised deposit of waste materials on land;
- the use of land without planning permission for the storage and/or processing of waste materials including demolition waste, scrap vehicles and green waste; and
- the extension of an existing mineral or waste site beyond the boundary of the area for which it has planning permission.
4.3.5 As stated above, DCC only has responsibility for enforcement relating to minerals and waste development, and complaints relating to other forms of development will be referred to the relevant District Council. In some circumstances there may be an overlap between County and District Council’s responsibilities – for example, where waste materials are being brought to a site for use in a construction project – and the appropriate course of action will be resolved through discussion with the District Council.
Does the activity already have planning permission?
4.3.6 The initial investigation by the Planning Officer may indicate that the activity being undertaken already has planning permission; for example:
- the complainant may be unaware that planning permission has been granted for the activity;
- an activity such as the importation of waste materials may be ancillary to another form of development, e.g. formation of a level platform for a new building, that has been granted permission; or
- the activity is deemed to be ‘permitted development’ under the Town and Country Planning (General Permitted Development) (England) Order 2015 and therefore does not require submission of a planning application.
4.3.7 In such cases, the Planning Officer will notify the complainant that no further action will be taken and explain the reasoning for this.
Is the alleged activity immune from enforcement action?
4.3.8 A breach of planning control can become ‘lawful’ and therefore immune from enforcement action through the passage of time under the provisions of S171B of the Town and Country Planning Act 1990. Immunity for building, engineering, mining or other operational development occurs four years from the date that the development was substantially completed, while changes of use gain immunity after 10 years. As case law has established that each ‘shovelful’ of mineral worked is a separate operation, mineral extraction cannot gain immunity solely through the passage of time.
4.3.9 In circumstances where it appears that a breach has been concealed with the intention of gaining immunity, the Council can apply to the Magistrates’ Court for a Planning Enforcement Order which, if granted, will allow a further year for the Council to investigate the breach and, if necessary, undertake enforcement action.
Has a breach of one or more planning conditions occurred?
4.3.10 A significant proportion of complaints received by DCC concern existing mineral or waste sites where it is alleged that the operator is failing to comply with the approved documents or with the conditions attached to the site’s planning permissions. Common examples include working outside approved hours, failure to control levels of noise or dust, and failure to carry out necessary habitat management or restoration work. While such breaches can become apparent through the Council’s site monitoring, reports are welcomed from local residents to ensure that adverse impacts can be investigated as early as possible.
If a breach has occurred, how should it be resolved?
4.3.11 If the Planning Officer’s initial investigation indicates that the reported activity does amount to a breach of planning control that is not immune from enforcement action, the next step is to decide what action to take to resolve that breach. The potential options – including, but not limited to, formal enforcement action – are outlined in Chapter 5, with the choice being influenced by the specific circumstances of the site and activity being undertaken, together with the principles of public interest and expediency identified in Chapter 3.
4.3.12 An important point to underline is that the carrying out of development without planning permission is not unlawful, and an offence is only committed where a person fails to comply with the requirements of a formal notice that is issued by the Council.
[2] For any activity involving the importation of waste materials to a site, separate approval may be required from the Environment Agency regardless of whether the activity is considered to be ‘development’.
5. Enforcement: Methods for Resolving a Breach
5.1 Informal and Formal Methods
5.1.1 Chapter 4 outlined how DCC will investigate alleged breaches of planning control that are brought to its attention and the judgements that will be made in identifying whether a breach has taken place. This chapter will explain the options open to the Council to resolve a breach, ranging from informal approaches such as negotiation to service of formal notices and other legal action.
5.1.2 The Council’s reasoning for pursuing a particular course of action will be provided in the Planning Officer’s Initial Assessment report. While a neighbour or community affected by a breach may have an expectation of immediate formal enforcement action, they should be aware that the formal measures identified below include scope for periods to be allowed for compliance and for appeals.
5.2 Informal Methods
No Further Action
5.2.1 There will be circumstances where a breach is found to have occurred but where the Planning Officer concludes that no further action is warranted at the time, including where:
- the breach has ceased and no remedial action is required;
- the breach is minor and has caused no harm to the environment or local community; or
- action by another regulatory body would be more effective in remedying the breach.
5.2.2 A conclusion of ‘no further action’ does not prevent DCC from continuing to monitor the site for further breaches or responding to renewed complaints, which may result in a different course of action being taken in the future.
Negotiation
5.2.3 In some circumstances where there is no significant ongoing harm being caused, it will be more expedient to resolve the breach through negotiation with the person responsible, rather than proceeding to formal enforcement action. Such negotiation would include:
- clear agreement on the nature of any remedial action required, which may include cessation of any unauthorised use, removal of unauthorised structures or materials and/or treatment of the site to return it to an appropriate state; and
- a clear timescale for the completion of the agreed measures.
5.2.4 Failure by the person responsible for the breach to complete the measures within the agreed timescale is likely to result in the Council pursuing formal enforcement action to secure the required outcome.
5.2.5 Where a breach of planning control has occurred and there is a reasonable likelihood that planning permission may have been granted had the person responsible had sought it, they can be invited to submit a retrospective planning application within a specified timescale to ‘regularise’ the situation. Such an application would provide the Council with the opportunity to secure improvements to the site such as additional planting, together with the ability to impose conditions to limit how the operations are undertaken. However, in the event that such an application was refused, the Council would retain the ability to undertake enforcement action to remedy the breach if considered expedient to do so.
5.3 Formal Enforcement Action
5.3.1 Where the harm being caused by unauthorised development is serious, or in cases where attempts at negotiation have not secured the desired result, and it is expedient for the Council to pursue formal enforcement action, there are a range of notices that it can serve, together with options of other legal action.
Planning Contravention Notice
5.3.2 Where the Council considers that a breach of planning control has occurred and it requires more information before taking enforcement action, it can serve a Planning Contravention Notice [PCN][3]. This can be served on anyone with an interest in the land or any person carrying out operations on, or using, that land, and allows 21 days for compliance.
5.3.3 A PCN can require the recipient to provide information on the identity of anyone with an interest in the land, the nature and duration of the use or operations, and any information that may be considered necessary, but it cannot be used as a ‘fishing’ exercise if the Council has no firm grounds to suspect that a breach has occurred. Failure to comply with a PCN is an offence, as is making false or misleading statements in response to the PCN.
Breach of Condition Notice
5.3.4 Where a site has the benefit of planning permission, but the use or operations are being carried out without complying with one or more of the conditions of that permission, the Council can serve a Breach of Condition Notice [BCN] and stipulate the steps necessary to achieve compliance. Service may be on any person who is carrying out the development or any person with control of the land.
5.3.5 A BCN must allow at least 28 days for compliance, but there is no right of appeal against the notice. Failure to comply with a BCN is an offence, with prosecution in the Magistrates’ Court potentially leading to a fine of up to £2,500.
Enforcement Notice
5.3.6 The Enforcement Notice [EN] is the main tool available to the Council to address breaches of planning control where it is expedient to take formal action, and can relate to development carried on without planning permission or to failure to comply with a condition of a planning permission [i.e. alongside or as an alternative to a BCN].
5.3.7 There are specific requirements for the information to be included in an EN, including a full and accurate description of the breach; a clear statement of the reasons for issuing the EN; the steps necessary to remedy the breach; the date the notice takes effect [which must be more than 28 days] and the time allowed for compliance [with different periods specified for different remedial steps if appropriate]; and details of the right of appeal.
5.3.8 An EN must be served on a site’s owner, occupier (if different), and any other person with an interest in the land, which may include mortgage lenders, so it is common for a PCN to be served to establish the identity of these parties.
5.3.9 Any party that has been served an EN has the right of appeal to The Planning Inspectorate on a range of grounds concerning the fairness, accuracy or procedural compliance of the notice. An appeal effectively puts the EN ‘on hold’ until determination of the appeal, with a planning inspector having the ability to dismiss the appeal, thereby upholding the EN, or allowing the appeal in whole or in part, enabling him/her to amend or quash the notice.
5.3.10 The appeal process allows for an inspector to award costs against the appellant or planning authority if either party has acted unreasonably and caused the other party to incur unnecessary costs.
5.3.11 Failure to comply with the requirements of an EN is a criminal offence that is liable on summary conviction to a fine per offence or, on conviction on indictment, to an unlimited fine.
Stop Notice
5.3.12 As indicated above, an EN must allow a period of more than 28 days before it takes effect, which would allow a breach causing significant harm to continue for that period. Where the Council considers it expedient to do so, it can serve a Stop Notice [SN] alongside the EN to require specified activities to cease by a date of not less than three days from service of the SN [or within a shorter period where there are special reasons for doing so]. Contravention of a SN is an offence that carries an unlimited fine on conviction, and the Court must take account of any financial benefit that has occurred when determining the amount of the fine.
5.3.13 There is no right of appeal against a SN, but its validity and justification can be challenged in the High Court through judicial review. In the event of an appeal being lodged against the associated EN, the requirement of the SN to cease an activity remains in effect. Compensation is payable to a party on whom the SN is served in specific circumstances, including if an appeal leads to the accompanying EN being quashed or varied, or is the EN or SN are withdrawn.
Temporary Stop Notice
5.3.14 In contrast to a SN, a Temporary Stop Notice [TSN] can be served without an EN being issued, and it has immediate effect rather than having to allow three days’ notice. The TSN therefore allows the Council to take action quickly where it is expedient to do so. A TSN must specify the activity that should cease and provide the Council’s reasons for issuing the notice, and it can be served on persons carrying on the activity, occupying the land and/or anyone thought to have an interest in the land.
5.3.15 A TSN is valid for a maximum period of 28 days, during which the Council will need to consider further action through an EN and potentially a SN, as a further TSN cannot be served unless some other form of action has first been taken.
5.3.16 While a TSN has the benefit of immediate prohibition and carries no right of appeal, a limitation is that it can only require an activity to cease or reduce, and it cannot be used to require positive remedial action such as removal of unauthorised materials or landscaping. Contravention of a TSN is an immediate offence with an unlimited fine on conviction.
[3] Alternative means to seek information are provided through S330 of the Town and Country Planning Act 1990 and S16 of the Local Government (Miscellaneous Provisions) Act 1976
5.4 Other Provisions
5.4.1 In addition to the formal notices outlined in the previous section, DCC has a range of other measures that can be utilised in appropriate circumstances.
Injunction
5.4.2 Where the Council considers it expedient to do so, it can apply to the County Court or High Court for an injunction, against persons known or unknown, to restrain a breach of planning control on an interim or permanent basis. If required, an injunction is enforced through an application for committal for contempt of court.
Direct Action by the Council
5.4.3 Where the requirements of an EN have not been complied with in the period specified in the notice, the Council has the power to enter the land and undertake the required measures. Any costs reasonably incurred by the Council can be recovered from the landowner or occupier.
Confiscation Order
5.4.4 Under the Proceeds of Crime Act 2002, the Council is able to seek a Confiscation Order from the Court in order to remove financial benefit which a defendant has received through their criminal offence [e.g. through charging for the unauthorised disposal of waste materials]. This power can be used alongside legal proceedings such as prosecution for non-compliance with an Enforcement Notice.
Section 215 Notice
5.4.5 S215 of the Town and Country Planning Act 1990 allows a local planning authority to serve notice on the owner and occupier of land where it appears that the amenity of the area is adversely affected by the condition of that land. A S215 Notice can specify the steps to be taken to remedy the land’s condition and the time period for compliance, and there is a right of appeal to the Magistrates’ Court. Failure to comply with the notice is an offence, and the planning authority have the power to enter the land and undertake the specified measures themselves and recover their costs.
5.4.6 A S215 Notice can be used in circumstances that prevent use of an EN, including where the failure to maintain land does not constitute ‘development’ but is adversely affecting the amenity of the area. While District Councils would most commonly use this power, it would be open to DCC to utilise S215 at mineral or waste sites where an EN or BCN is not appropriate.
Appendix 1: Roles of Other Regulatory Bodies
The planning enforcement powers available to Devon County Council have similarities to powers exercised by other regulatory bodies, and this can sometimes be the source of misunderstanding by those carrying out development as well as by persons wishing to complain about alleged breaches of planning control. When responding to an alleged breach, DCC will liaise with other relevant agencies as may be necessary and will discuss the appropriate response based on the specific circumstances.
Anyone carrying on any form of development is strongly advised to first establish from which regulatory bodies any form of approval is required.
District Councils – Planning
The district councils in Devon have the equivalent enforcement powers as outlined in this Plan for all forms of development other than minerals and waste development. Each district council in Devon has published a Local Enforcement Plan to explain its approach to dealing with breaches of planning control in their area.
District Councils – Environmental Health
District Councils’ environmental health services have regulatory powers over a wide range of matters including food safety, infectious diseases and animal welfare. Of direct relevance to DCC’s minerals and waste enforcement activity; environmental health officers also have responsibility for air pollution, noise, contaminated land and fly-tipping, with regulatory powers to investigate and enforce under the relevant legislation.
Environment Agency
The Environment Agency is an executive non-departmental Government body with responsibility for protecting and improving the environment including:
- regulating major industry and waste;
- treatment of contaminated land;
- water quality and resources;
- fisheries;
- inland river, estuary and harbour navigations;
- conservation and ecology; and
- managing flood risk from main rivers, reservoirs, estuaries and the sea.
The Agency has extensive regulatory responsibilities for the management of waste, including the issuing of environmental permits for waste management facilities and enforcement powers in respect of unauthorised or illegal waste activity.
Health and Safety Executive
The HSE’s role is to prevent work-related death, injury and ill health, and this is undertaken through inspection of workplaces, enforcement of legislation, and permissioning and licensing of hazardous activities.
The HSE has responsibility for safety at quarries, including extraction faces, blasting and waste tips, not just for those working at a quarry but also for persons living, working or passing nearby or visiting a quarry.
Appendix 2: Sources of Guidance
The following publications provide general guidance on the planning enforcement powers that are available to planning authorities, together with the context in which Devon County Council undertakes its planning role.
National Planning Policy Framework – paragraph 58
Planning Practice Guidance – Enforcement and post-permission matters
https://www.gov.uk/guidance/ensuring-effective-enforcement
Planning Practice Guidance – Minerals
https://www.gov.uk/guidance/minerals
Planning Practice Guidance – Waste
https://www.gov.uk/guidance/waste
Devon County Council – Planning
Royal Town Planning Institute – Planning Enforcement Handbook (May 2020)
https://www.rtpi.org.uk/practice/2020/may/planning-enforcement-handbook-for-england/
Planning Aid England