Overview

Planning permission is invariably needed for using and developing land. To obtain it, a number of procedures have to be followed. A successful application may include some conditions. If the application is denied an appeal may be possible.

Enforcing planning law

In order to ensure that the planning controls are observed, the local planning authority (the 'LPA') is given wide powers of enforcement. These powers include:

• A right of entry for enforcement purposes
• Service of a planning contravention notice to obtain information about a breach or suspected breach
• Service of a breach of condition notice to require compliance with a condition or limitation attached to a planning permission
• Apply for court order to restrain any breach or threatened breach of planning control
• Service of an enforcement notice to secure compliance with planning controls
• Service of a stop notice prohibiting activity in contravention of an enforcement notice
• Service of a temporary stop notice prohibiting for 28 days activities in breach of a planning condition

The LPA can only take enforcement action if it does so within an appropriate time frame.

Where the breach of planning control consists of an operational development carried out without planning permission, or a change of use of a building (such as from a maisonette to a single dwelling house), the LPA or PS must take enforcement action within 4 years of the date on which the operations were substantially completed, or the change of use occurred.

With respect to other breaches, i.e. any material change of use other than to use as a single dwelling house, or any breach of condition or limitation attached to a planning permission, the LPA or PS must take enforcement action within 10 years of the date of the breach.

Right of entry

Power to enter without a warrant

Any person authorised by the LPA or PS may, without a warrant, enter any land at any reasonable hour and on reasonable grounds in order to find out:

• Whether there is or has been any breach of planning control on that or any other land;
• Whether any enforcement power should be exercised and if so, how;
• Whether there has been compliance with any enforcement power that has been exercised. Accordingly, entry must be the logical means of obtaining the information in question.

In the case of a dwelling house, 24 hours' notice of the intended entry must be given to the occupier. This requirement does not apply to land or outbuildings in the area surrounding the house (e.g. a shed).

Power to enter under a warrant

The Sheriff can issue a warrant for entry if he is satisfied that:

• There are reasonable grounds for entering for the purpose in question; and
• Admission has been refused, or it is reasonable to believe that it will be refused, or it is an urgent case.

Entry under a warrant must be at a reasonable hour, except in cases of urgency, and must be within one month from the date of issue of the warrant. Each warrant authorises one entry only.

Interdict

An interdict is a legal term for forbidding or restraining someone from doing something. The LPA may apply for an interdict if it considers it necessary to stop a breach, or anticipated breach, of planning control. The granting of an interdict and the details of its terms are entirely up to the court.

Usually, the LPA has to show that there is a clear breach or a clear likelihood of a breach, and that the solution is an appropriate one in the circumstances.

As an interdict requires a hearing at which both parties must be represented, there can be a considerable delay before interdict is granted. To prevent the alleged breach continuing in the meantime, the LPA can apply unilaterally for an interim interdict, which may be granted, pending the outcome of the full interdict hearing. To obtain an interim interdict, the LPA need only show a prima facie breach (i.e. a breach that seems self-evident at first sight, rather than after close inspection) or anticipated breach. Also, the balance of convenience must favour granting the interim interdict (i.e. the impact on the LPA if the interim interdict is refused must not be less than the impact on the developer if it is granted).

Temporary Stop Notice

Alternatively, the LPA may issue a temporary stop notice.

Content

The temporary stop notice must specify the activity giving rise to a breach of planning controls (which includes planning conditions); prohibit engagement in the activity (or in so much of the activity as is specified in the notice); and set out the LPA's reasons for issuing the notice.

Who may be served?

A temporary stop notice may be served on any person who appears to have an interest in the land or be engaged in any activity forbidden by the enforcement notice. Where a stop notice has been served, the LPA must also display a copy of the notice on the land concerned stating that contravention of it is a prosecutable offence.

Restrictions

A temporary stop notice cannot ban the use of any building as a dwelling house. Nor can it stop the carrying out of any activity which has continued for more than 4 years unless the activities consist of, or are connected to, building operations, engineering, mining, or the deposit of waste or refuse.

Effects

A temporary stop notice takes effect for 28 days (or such shorter period as specified in the notice; or when withdrawn by the LPA) from the date a copy was displayed on the site. Any person who goes against a stop notice (or causes or permits its contravention) after a site notice has been displayed or after they have been served with the stop notice is guilty of an offence and could be liable to pay a fine of an unlimited amount.

Any person having an interest in the land can be compensated if a temporary stop notice is wrongfully served.

Planning contravention notice ('PCN')

Function

A PCN is used to obtain information needed for enforcement purposes.

Content

A PCN may require the person upon whom it is served to give any information specified in the notice regarding any operations, uses or activities being carried out on the land and any matter relating to conditions or limitations attached to an existing permission. It must contain a warning that if the person served with the notice fails to reply, enforcement action may be taken and they may be deprived of compensation if a stop notice is served.

Who may be served with a PCN?

A PCN may be served on anyone who is the owner or occupier of the land to which the notice relates or who has any other interest in it. A PCN can also be served on anyone who is carrying out operations on the land or using it for any purpose.

Breach of Conditions Notice ('BCN')

Function

A BCN is used to secure compliance with conditions or limitations attached to an existing planning permission. It is an alternative to an enforcement notice.

Content

The notice would specify the steps which the LPA considers ought to be taken or the activities that ought to cease in order to secure compliance with the conditions specified in the notice. It will specify a period for compliance that must not be less than 28 days from the date of service of the notice.

Who may be served with a BCN?

The LPA or PS may serve a BCN on any person who is carrying out or has carried out the development, or on any person having control of the land.

Effects of a BCN

If the person served with a BCN has not put right the breach by the time specified in the notice (or by the time specified in any further notice served by the LPA), they are guilty of an offence. However, it is a defence for the person served to prove that they took all reasonable measures to secure compliance with the notice or, if they were served as the person having control of the land, that they did not have control at the time when they were served with the BCN.

If a planning condition is later removed, any BCN relating to that planning condition is withdrawn. However, the person served with the BCN is still liable for the original offences.

Enforcement notices

Function

An enforcement notice enables the LPA to enforce planning controls. Non-compliance with an enforcement notice is a crime.

The requirement to issue an enforcement notice

The LPA may issue an enforcement notice when it appears that there has been a breach of planning control. However, this action should not be automatic.

The circumstances have to be such that it is appropriate for an enforcement notice to be issued. For example, it will usually be inappropriate to take enforcement action against a trivial or technical breach that causes no harm to amenities in the area.

An enforcement notice must be issued within the relevant time limits. In other words, where the breach of planning control consists of operational development carried out without planning permission or a change of use of any building to use as a single dwelling house, the LPA must take enforcement action within 4 years of the date on which the operations were substantially completed or the change of use occurred. Regarding other breaches, the LPA must take enforcement action within 10 years of the date of the breach.

Content

The enforcement notice must include details of the following:

• Matters alleged to constitute breach of planning control (so that the person served knows what the breach is)
• Steps to be taken or the activities to be stopped in order to stop the breach. The period within which any steps to be taken should also be stated in the notice
• The date on which the notice is to take effect, which must be at least 28 days from service of the notice
• Additional matters as may be prescribed under various laws

Who can get an enforcement notice?

An enforcement notice may be served on:

• The owner;
• The occupier - this includes any person renting and therefore occupying by virtue of a lease or tenancy;
• Any other person with an interest in the land, whose interest is materially affected by the notice.

When can it be served?

An enforcement notice must be served not more than 28 days after it is issued and not less than 28 days before the date specified in the notice as the date on which it is to take effect.

Validity of an enforcement notice

An error or defect in an enforcement notice could render it void, depending on what the error is.

The notice will be invalid if there is a major defect, e.g. if it does not state what the alleged breach is. It is therefore a complete defence to any prosecution brought for non-compliance if an enforcement notice is void.

An enforcement notice may also be invalid for other minor defects, errors or misdescriptions.

An invalid enforcement notice can only be challenged by way of appeal. At the appeal, the Scottish ministers may correct such defects as they think fit.

Effect of an enforcement notice

Once an enforcement notice is complied with and compliance leaves buildings or works on the site, planning permission is deemed to have been given for those buildings or works.

Failure to comply with the terms of an effective notice may result in the owner becoming liable to pay a fine of an unlimited amount. Subsequent planning permission will clear any contrary enforcement notice, but will not affect liability for offences committed before this.

Any person who has control of, or an interest in, the land must not continue, or permit to be continued, any activity that the notice requires to cease. If this person does so, they are also guilty of an offence. However, it is a defence if the owner can show that they did everything they could be expected to do to secure compliance. It is also a defence for the person charged to show that they were not served with the enforcement notice.

In determining any fine, the court must consider any financial gain obtained or likely to be obtained by the offender as a result of the offence.

After any period for compliance with an enforcement notice has passed and the notice has not been fully complied with, the LPA, in addition to prosecuting, may enter the land and take any steps required by the notice. The LPA may then recover any reasonable expenses incurred from the owner or tenant of the land at that time. Further, if the breach is an ongoing one, the LPA may seek an interdict to stop the breach.

Appealing an enforcement notice

The period for compliance with an enforcement notice is suspended by an appeal, which is made to the Scottish ministers.

Grounds for appeal

There are 6 grounds of appeal against an enforcement notice:

• The matters alleged have not occurred.
• The matters, if they occurred, do not amount to breach of planning control.
• No enforcement action can be taken at the date the notice was issued as regarding what was alleged in it.
• Copies of the enforcement notice were not served as required.
• The steps required by the notice or the activities required to cease exceed what is necessary to stop the breach.
• The period specified in the notice for the taking of steps fall short of what should reasonably be allowed.

Time limit for appeal

Notice of appeal must be given to the Scottish ministers before the date on which the enforcement notice takes effect. Such notice must be in writing and sent either by post or electronic communication.

Who may appeal?

Any person on whom the enforcement notice was served or who has an interest in the land may appeal.

Overview of the appeal procedure

• The appellant has to submit (i) a notice of appeal; (ii) a written statement specifying the grounds on which the appellant is appealing; (iii) all documents, materials and evidence which the appellant intends to rely on in the appeal to the Scottish ministers; and (iv)a fee.
• The written statement and documents etc. must be submitted together with the notice of appeal. It is important for the appellant to specify all the grounds on which they wish to rely because amendments to the grounds of appeal are unlikely to be allowed later.
• The notice, written statement and documents etc. must be copied to the LPA at the same time they are submitted to the Scottish ministers.

Form of appeal

• Appeals against an enforcement notice can either be by way of written representation, public local inquiry or a hearing.
• The reporter appointed by the Scottish ministers will decide the form of the appeal.
• The procedures are the same as ordinary planning appeals.

Stop notice

The problem with an enforcement notice is that it cannot take effect earlier than 28 days after it is served, meaning the breach can continue until then. In this situation, a stop notice (or a temporary stop notice) may be an answer as it brings activities in breach of planning control immediately to an end.

Content

The stop notice must refer to the enforcement notice and must have a copy of the enforcement notice attached to it. The stop notice must also state the date on which it becomes effective, being at least 3 days and not more than 28 days after service of the notice. An earlier effective date may be possible if the LPA considers that there are special reasons.

Who may be served?

A stop notice may be served on any person who appears to have an interest in the land or be engaged in any activity forbidden by the enforcement notice. Where a stop notice has been served, the LPA may also display a site notice on the land concerned, stating that it has been served, indicating its requirements and stating that contravention is a prosecutable offence.

Restrictions

A stop notice cannot ban the use of any building as a dwelling house. Nor can it stop the carrying out of any activity which has continued for more than 4 years, unless the activities consist of, or are connected to, building, engineering, mining or other operations, or the deposit of waste or refuse.

Effects

A stop notice has effect from the date specified in the notice, which must be at least 3 days after service (unless reasons are given) and not more than 28 days after service. The stop notice expires when the enforcement notice is withdrawn or quashed; when the compliance period specified in the enforcement notice ends; or when the stop notice is withdrawn. Any person who goes against a stop notice (or causes or permits its contravention) after being served with one, or after a site notice has been displayed, is guilty of an offence and could be liable to pay a fine of an unlimited amount.

Further information

If you are looking for more information, you should visit the e-planning website, which is the Scottish government's online planning resource. Use this site to learn about planning regulations; applying for planning permission; appealing against a decision; and Scottish government policy.