Scottish Government

Circular 4/1999

ANNEX C

RIGHTS OF ENTRY

Provisions

• Sections 156-158 of the 1997 Act provide planning authorities with 'rights of entry' which are more closely tailored to their needs in obtaining information, preparatory to taking formal enforcement action. When taken together with the planning contravention notice, planning authorities will have comprehensive powers to obtain essential information about any suspected or actual breach of planning control.

Rights Of Entry Without A Warrant

• Section 156 enables planning authorities to authorise a person to enter land, at a reasonable hour, for any of the following purposes:

1. to ascertain whether there is, or has been, any breach of planning control on the land, or on any other land;

2. to determine whether any of the planning authority's enforcement powers should be exercised in relation to the land, or any other land;

3. to determine how any such power should be exercised; and

4. to ascertain whether there has been compliance with any requirement arising from earlier enforcement action in relation to the land, or any other land.

• For the purpose of determining whether an enforcement notice should be issued in relation to any land, the Secretary of State may also authorise entry, at a reasonable hour, to that land or any other land, provided that he has consulted the planning authority.
• The inclusion of the words '..... or on any other land' means that, if necessary, neighbouring land can be entered, whether or not it is in the same ownership, or is occupied by the person whose land is being investigated.
• The provisions of Section 156 state that there must be '..... reasonable grounds for entering [the land] for the purpose in question'. This is interpreted to mean that entering the land is a commensurate means of obtaining the information required by the planning authority.
• Admission, under these powers, to any building used as a dwellinghouse shall not be demanded as of right, unless the occupier has been given 24 hours notice of the intended entry.

Rights of Entry Under Warrant

• Section 157 provides that, when there are reasonable grounds for entering land for enforcement purposes, if entry is refused, or refusal is reasonably apprehended, or the case is one of urgency, entry by warrant issued by a Sheriff is possible. There are 3 restrictions on the use of a warrant:

1. it only authorises entry on one occasion;

2. the entry must be within one month from the date of issue of the warrant; and

3. the entry must be at a reasonable hour, unless the case is one of urgency.

Rights Of Entry: Supplementary Provisions

• Section 158 provides that, on entering any land in pursuance of the right of entry, authorised persons:

1. must if so required, produce evidence of their authorisation and state the purpose of their entry before they enter the land;

2. may take with them such other persons as may be necessary for the purpose of their entry.

• It is an offence to wilfully obstruct an authorised person acting in the exercise of a right of entry. Any person found guilty of such an offence is liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.
• If any persons who enter any land in exercise of a right of entry disclose any information obtained by them while on the land, about any manufacturing process or trade secret, they shall be guilty of an offence. A person found guilty of such an offence is liable, on summary conviction, to a fine not exceeding the statutory maximum. On conviction, on indictment, the penalty is a term of imprisonment not exceeding 2 years or an unlimited fine, or both. (It is not an offence to disclose information in the course of performing a duty in connection with the purpose for which entry to the land was authorised).
• If any damage is caused to land (which includes a building) or moveable property (for example, machinery, equipment or livestock), compensation may be recovered by any person suffering the damage from the authority who gave the written authority for the entry. A dispute about the amount of any compensation is to be referred to, and determined by, the Lands Tribunal for Scotland, in accordance with the provisions of Section 86 of the 1997 Act.
• Planning authorities are expected to take every reasonable precaution to ensure that no damage is caused to land or moveable property as a result of exercising the right of entry. As their investigations for enforcement purposes will normally be confined to a visual inspection, any consequential damage should be most exceptional. Planning authorities should also pay due regard to any health and safety implications.
• On leaving the land, the authorised person must, if the owner or occupier is not then present, leave it as effectively secured against trespassers as it was found.

Rights Of Entry: Agricultural Land

• Planning authorities are reminded that, in the interests of animal and plant health, it is essential that the following special precautions are observed when the right of entry to agricultural land is exercised:

1. When there is an outbreak of serious disease in livestock, (such as Foot and Mouth disease), notices are place at entrances/exits prohibiting entry. In the case of other diseases, whilst animal movements may be restricted, entry by personnel may not necessarily be prohibited but may be inadvisable on disease control grounds. Planning authorities' officers should contact the Divisional Veterinary Manager at the local Animal Health Office to determine if any animal health controls are in force in the premises they intend to visit.

2. Similarly, where there is serious plant disease (eg rhizomania of sugar beet), access to land may be strictly controlled under the Plant Health (Great Britain) Order 1993. With soil-borne diseases, there is a distinct risk that infested soil could be spread on footwear to an unaffected part of the farm or even to another location. Planning authority officers should not rely on a sign being present on such land and should instead make enquiries with the local SOAEFD Area Office, so that a check can be made with the Agricultural Staff that there is no plant health restriction in force on the land to be visited.