Fixed Penalty Notices
10. The intention of fixed penalty notices ( FPNs) is to offer planning authorities an alternative option to address breaches of enforcement notices ( EN) or breach of Condition notices ( BCN) in addition to existing powers.
11. Where an EN or BCN is not complied with ( i.e. where any steps to be taken or activities to be ceased have either not been taken or have continued after the date set for compliance) then the landowner (or other responsible person) is guilty of an offence of breach of the notice (under either s.136 (for an EN) or s.145 (for a BCN) of the 1997 Act).
12. Under these respective sections the planning authority can seek a prosecution and a fine on conviction of up to £20,000 in respect of breach of an EN or £1,000 in respect of breach of a BCN.
13. Planning authorities have in the past expressed concern that prosecution is a potentially lengthy and expensive process, with no guarantee that the desired outcome will be achieved. A consequence of this is that, in some cases, offences go unpunished creating a perception that the planning enforcement system lacks credibility, undermining public confidence in planning. We believe that the introduction of FPNs will have a significant deterrent effect, particularly for minor breaches, as the developer would be aware that;
- The planning authority is more likely to take action as it will be quicker, cheaper and easier to issue an FPN than to prepare a prosecution, and that,
- the longer they leave the breach uncorrected the higher the potential penalties would progressively become.
14. In order to address these concerns provision was made in section 25 of the 2006 Act, and accepted by parliament, to introduce new sections 136A (Fixed penalty where enforcement notice not complied with) and 145A (Fixed penalty notice where breach of condition notice not complied with) into the 1997 Act.
15. Sections 136A and145A provide planning authorities with the power to issue an FPN, giving a person the opportunity to pay a penalty as an alternative to prosecution. During the development of the FPN proposals and the passage through Parliament of the 2006 Act Ministers indicated that they wished to see a scale of fines with persistent offences attracting a higher fine. The 2006 Act provides that this would be set out in regulations. Draft regulations to implement this are attached at annex A to the consultation ( The Town and Country Planning (Amount of Fixed Penalty) (Scotland) Regulations 2007)
16. We therefore propose a scale of penalties based on the breach in question with a planning authority issuing increased fines if the breach remains uncorrected over time. It is open to planning authorities to issue a second or subsequent EN or BCN where a breach of planning control remains uncorrected. If any subsequent EN or BCN were also not complied with then there would be the option to issue a further FPN and the penalty would rise to the next level on the incremental scale. This process could be repeated if/as necessary, each time rising to the next level of the scale.
17. Regulation 1 (2) of The Town and Country Planning (Amount of Fixed Penalty) (Scotland) Regulations 2007 set out definitions of what would constitute 'first' and 'subsequent' ENs or BCNs for the purposes of prescribing the amount of any FPN.
Q1. Do you support the proposal that penalties should be increased for continuing breaches and if not, why not? |
18. Regulation 2 sets out the amount of the penalty for breach of an enforcement notice. We propose that this would be set at £1,000 in respect of breach of the first EN and for each breach of a subsequent EN would be increase by £500 ( i.e. £1,500, then £2,000, then £2,500, etc) up to a maximum amount of £5,000.
19. Regulation 3 similarly sets out that for breaches of BCNs the penalty would be set at £100, rising by £50 steps to a maximum of £300.
20. The maximums proposed would be in keeping with established legal precedents in respect of Fixed Penalty Notices issued under other legislation that the maximum fine does not exceed 30% of the maximum that can be imposed on summary conviction in court conviction in court. It should be borne in mind that all the existing options remain open and, where the planning authority considers that the breach is more serious and would merit a higher penalty, we would expect them to consider a prosecution and/or direct action rather than an FPN.
Q2. Do you have any views on the proposed amounts for the fixed penalty, in particular the proposed initial amounts? |
Q3. Do you have any views on the proposed increase in the amount of each subsequent fixed penalty, in particular with regard to the number of FPNs that would be required to reach the maximum and whether the fixed penalty should increase by a larger amount for each subsequent offence? |