11.0 What are the possible outcomes of an investigation?

11.1 No breach established - Following investigation it may be found that there is no breach of planning control because, for example, the unauthorised use has ceased or the development is permitted development or no development has taken place.

11.2 There is a breach of planning control but not considered expedient to pursue formal action - Just because a breach may exist does not automatically mean that formal action should be taken. Enforcement powers are discretionary and should be used proportionately. So, for minor or technical breaches which cause little or no harm it may be considered inexpedient to take enforcement action.

11.3 The development is lawful and immune from enforcement action -

This is when unauthorised operational development commenced more than 4 years ago, or
an unauthorised change of use of a building to a single dwelling house commenced more than 4 years ago, or
an unauthorised material change of use has been continuing for more than for 10 years, or
where planning conditions imposed by way of a planning permission have been breached for a continuous 10-year period.

In any such case, the person responsible for the breach is entitled to immunity from enforcement action. They may be asked to submit an application for a Certificate of Lawful Use or Development which will enable the Council to make a formal decision on whether the breach has become lawful by the passage of time and is therefore immune from enforcement action. These time limits may be extended where there is evidence that the alleged breach has been deliberately concealed from the Council. This is explained in more detail below under the heading "Deliberate Concealment - Planning Enforcement Orders".

11.4 Negotiations take place to find a solution - In accordance with Government guidance, the first priority is to try and resolve any breaches of planning control through negotiation. Only when such negotiations fail to secure a solution should formal action be considered. The Council will not however allow negotiations to become protracted where there is a need to make the development acceptable or where there is a requirement for a particular use to cease.

11.5 Invitation to submit a retrospective application - In accordance with Government advice, where a breach of planning control is considered to be acceptable in planning terms, the Council may invite the submission of a retrospective planning application for formal consideration by a planning officer.

11.6 A retrospective application will only be invited where we consider that there is a reasonable likelihood that permission or consent may be granted in line with Local and National planning policies or where a development may be made acceptable by way of the imposition of conditions. However, the fact that an application is submitted does not necessarily mean it will be approved.

11.7 Under-Enforcement - Where development has been carried out without planning permission, and where the development could be made acceptable by imposing conditions, a retrospective application may be invited. If after a reasonable period of time the owner or occupier of the land fails to submit such a planning application, consideration will be given to serving an Enforcement Notice which "under-enforces"; that is, it has the effect of granting planning permission subject to the terms of the Enforcement Notice being complied with in full. This will only be used where it is considered that the harm caused by the unauthorised development is such that it can be made acceptable if controlled by restrictions or requirements imposed by a Notice. In such circumstances the Council will notify the owner or occupiers of the land, the complainants and the Local Ward Borough Councilor's, and where appropriate the Parish and Town Councils, of the intended course of action. 1

1.8 Formal Action - The Council considers that the harm caused by the unauthorised development is unacceptable and it is therefore necessary to take formal enforcement action to remedy the breach of planning control. The more common forms of enforcement action are listed below:

The service of an Enforcement Notice under Section 172 of the Town and Country Planning Act 1990 that identifies a breach of planning control and requires specific steps to be undertaken to remedy the breach.
The service of a Listed Building Enforcement Notice under Section 38 of the Planning (Listed Buildings and Conservation Areas) Act 1990 that requires specific steps to be undertaken to bring a listed building back to its former state or to carry out work to alleviate the effects of unauthorised works or to bring the building into the state it would have been if the terms of any listed building consent had been observed.
The service of a Breach of Condition Notice (BCN) under Section 187A of the Town and Country Planning Act 1990 to secure compliance with conditions imposed on a planning permission.
The service of a Stop Notice or a Temporary Stop Notice (TSN) under Section 183 and Section 171E of the Town and Country Planning Act 1990 requiring the cessation of unauthorised activities. A Stop Notice may only be served in conjunction with an Enforcement Notice referred to above. Before issuing a Stop Notice the Council will carry out a cost benefit analysis so that any costs incurred by the developer by having to stop works are fully taken into account and weighed against the harm being caused and the likelihood of planning permission being granted. A TSN is not issued in conjunction with an Enforcement Notice and will last a period of up to 28 days after it is served. There is no right of appeal against either a Stop Notice or a TSN.
The service of a Notice under Section 215 of the Town and Country Planning Act 1990 requiring the proper maintenance of land and buildings.
In extreme cases where the need arises proceedings for an injunction may be considered. The Council is entitled under s187B of the Town and Country Planning Act 1990 to seek to obtain an injunction in either the High Court or County Court in order to restrain a breach of planning control. Should there be non-compliance with an injunction, the person in breach will be in contempt of Court, and may be liable to financial penalty, or committal to prison.

11.9 If enforcement action is considered to be necessary, the Enforcement Team will instruct the Council's Legal Team and aim to issue an Enforcement Notice or other relevant Notice within 28 days of sending those instructions.

11.10 Right of Appeal - The recipient of an Enforcement/Listed Building Enforcement Notice has the right to lodge an appeal before the date on which the Notice takes effect (which must be at least 28 days from the date when the notice is served). Appeals are decided by an independent Planning Inspector and it will take several months, or longer in complex cases, before there is a formal decision. If there is an appeal interested parties will have an opportunity to make representations to the Planning Inspectorate.

11.11 Failure to comply with the requirements of a Notice - Where a landowner/ occupier or other person responsible for a breach of planning control does not comply with a Notice (after either the appeal process has been exhausted and the Notice has been upheld or an Enforcement Notice has come into effect without an appeal being made), the Council can:

Take direct action to remedy a breach. Where such action is taken the Council will seek to recover the costs of undertaking the works from the landowner, including charging the land with the costs incurred. Whilst this can be an effective way to secure compliance with an Enforcement Notice, it can also involve a significant cost to the Council. Such action will, therefore, only be considered in exceptional circumstances, and will be subject to appropriate resources being identified.
Prosecute landowners who fail to comply with an Enforcement Notice within the compliance period. In most cases this will be the preferred method.
Prosecute landowners who have committed other criminal offences such as unauthorised works to protected trees and listed buildings and the display of advertisements without consent.
Apply to the County Court or High Court for an injunction in serious cases