Scottish Government

ANNEX A

PLANNING ENFORCEMENT

INTRODUCTION

• Annexes A-I provide detailed procedural guidance on the use of the powers from the Town and Country Planning (Scotland) Act 1997. Those powers are:

• Definitions used in connection with enforcement (Sections 123 & 124)
• Time limits on enforcement action (Section 124)
• Planning contravention notices (Section 125)
• Rights of entry (Section 156)
• Certificates of Lawful Use or Development (Sections 150-155)
• Enforcement notices (Sections 127-129)
• Execution of works required by enforcement notice (Direct Action) (Section 135)
• Stop notices (Sections 140-144)
• Breach of Condition Notices (Section 145)
• Interdicts restraining breaches of planning control (Section 146)
• Land Adversely Affecting Amenity of Neighbourhood (Section 179)

• The information provided does not purport to offer a complete description of the provisions. Nor can it be regarded as an authoritative interpretation of the law. Its purpose is simply to summarise the main features of the legislation and to identify those provisions to which authorities may wish to give their attention.
• The overall effect of the enforcement provisions now in force should be to enable planning authorities to take effective enforcement action more efficiently and quickly, including the investigation of suspected breaches of control.

Definitions used in connection with enforcement

• Section 123 of the 1997 Act defines certain expressions used in connection with enforcement:

' A breach of planning control' is defined as consisting of:

• carrying out any development without the required planning permission; or
• failing to comply with any condition or limitation subject to which planning permission has been granted.

(This definition ensures that any contravention of the limitations on 'permitted development' rights, under the General Permitted Development Order, constitutes a breach of planning control against which enforcement action may be taken).

'Taking enforcement action' is defined as consisting of issuing an enforcement notice including serving a breach of condition notice.

For these purposes ' planning permission' means planning permission as defined by Section 123(3) of The Town and Country Planning (Scotland) Act 1997.

Section 124 of the 1997 Act uses certain expressions which require further interpretation. Matters of interpretation are for the Courts, but the following guidance gives an informal interpretation of those expressions.

' Substantially completed' - no enforcement action may be taken against any breach of planning control, consisting of the carrying out without planning permission of building, engineering, mining or other operations, after a 4-year period beginning with the date on which operations were substantially completed. What is substantially complete must always be a matter of fact and degree and of the prevailing circumstances in any case. Therefore, it is not possible to define precisely what is meant by the term 'substantially completed'. In the case of a single operation, such as the building of a house, the 4-year period generally would not begin until the entire operation was substantially complete. Arguably, in the case of a house, it is not substantially complete until all the external walls, roof-tiling, woodwork, guttering and glazing are completed; but it might be regarded as substantially complete if only some decorating or internal plastering work remains to be done, particularly if the building has already been put to use for its intended purpose. Each case should be judged on its particular facts, with all the relevant circumstances being taken into account.

' Use as a single dwellinghouse' - no enforcement action may be taken after a 4-year period beginning with the date of a breach of planning control, where that breach consists of a change of use of any building to use as a single dwellinghouse. However, it is important to recognise that a building does not become a single dwellinghouse simply because its use as such is, by virtue of the 4-year rule, immune from enforcement action. Whatever the length of time a building is used as a single dwellinghouse, it will not necessarily be regarded as being a dwellinghouse in fact: that will depend on a number of other considerations. Although there is no definition of what constitutes a dwellinghouse, it is possible for a reasonable person to identify one by sight. If no reasonable person would identify a particular structure as a dwellinghouse, it is justifiable to conclude, as a matter of fact, that it is not a dwellinghouse, even if it is being used as such. This is an important distinction which means that a building may be used lawfully as a dwellinghouse without acquiring the 'permitted development' rights associated with a building that is a dwellinghouse.

• The above distinction (between use as and being a dwellinghouse) is important in circumstances where people have adapted or used unlikely or unusual buildings as their houses. However, under the terms of the General Permitted Development Order (GPDO) it may also apply, in certain circumstances, to ordinary flats: a flat may be used as a single dwellinghouse without acquiring 'permitted development' rights, because Article 2 of the GPDO specifically excludes them from the definition of 'dwellinghouse' for GPDO purposes. The criteria for determining whether premises are being used as a single dwellinghouse should include both their physical condition and the manner of the use. For the purposes of the Act, a single, self-contained set of premises can properly be regarded as being in use as a single dwellinghouse if it meets the following criteria:

• it comprises a unit of occupation, which can be regarded as a 'planning unit' separate from any other part of a building containing it;
• it is designed or adapted for residential purposes, containing the facilities for cooking, eating and sleeping normally associated with use as a dwellinghouse;
• it is used as a permanent or temporary dwelling by a single person, or by persons living together as, or like, a single family.

This interpretation would exclude such uses as bed-sitting room accommodation, where the occupants share some communal facilities (eg a bathroom or lavatory) and the 'planning unit' is likely to be the whole building, in use for the purposes of multiple residential occupancy, rather than each individual unit of accommodation.

TIME LIMITS ON ENFORCEMENT ACTION

Breaches With A 4-Year Time Limit

• Where a breach of planning control consists of the carrying out of any form of 'operational development' without planning permission, Section 124(1) provides that enforcement action may only be taken within 4 years of the date on which the operations were 'substantially completed'. This provision extends to building, engineering, mining and other operations in, on, over or under the land.
• Where a breach of planning control consists of a change of use of any building (which, for the purposes of the 1997 Act, includes part of a building) to 'use as a single dwellinghouse', Section 124(2) provides that enforcement action may only be taken within 4 years of the date of the breach. This time limit applies both where the change to use as a single dwellinghouse involves development without planning permission, and where it involves a failure to comply with a condition or limitation to which a planning permission is subject.

Breaches With A 10-Year Time Limit

• Where there is any other breach of planning control - ie a breach involving any material change in the use of land (other than a change to use as a single dwellinghouse) either without planning permission, or in breach of a condition or limitation to which a planning permission is subject - Section 124(3) provides for the 10 year time limit on enforcement action to apply, in place of the previous fixed cut-off date of the end of 1964.

Time Limits On Supplementary Enforcement Action

• The time limits outlined above apply to the 'first' taking of enforcement action in respect of a breach of planning control. However, in the circumstances described below it is possible to take supplementary enforcement action outwith the normal time limits.
• Section 124(4)(a) of the 1997 Act provides that the time limits do not prevent the service of a Breach of Condition Notice if there is already an effective Enforcement Notice in force in respect of the breach. This is intended to cater for the situation where an Enforcement Notice is already effective in respect of a breach of control and the planning authority wish to strengthen its effect with a Breach of Condition Notice for the same breach. The planning authority may serve a Breach of Condition Notice in these circumstances, even after the normal time limit for taking enforcement action has expired.
• Section 124(4)(b) of the 1997 Act caters for another situation in which enforcement action can be taken outwith the normal time limits. It provides that the time limits do not prevent the taking of 'further' enforcement action in respect of any breach of planning control if, during the period of 4 years ending with that action being taken, the planning authority have taken or purported to take previous enforcement action in respect of the same breach. This mainly deals with the situation where earlier enforcement action has been taken, within the relevant time limit, but has later proved to be defective, so that a further notice must be issued or served, as the case may be, even though the normal time limit for such action has since expired. In this event, the planning authority now have a further 4 years, after their initial, or last unsuccessful, enforcement action, in which to take further enforcement action.