Scottish Government

EXECUTIVE SUMMARY

The Planning etc. (Scotland) Act 2006 introduced a number of provisions designed to enhance and extend the range of enforcement options available to planning authorities to address breaches of planning control. Regulations are required in respect of a number of these provisions.

The regulations consulted on were:

• The Town and Country Planning (Amount of Fixed Penalty) (Scotland) Regulations 2007,
• The Town and Country Planning (Notification and Display) (Scotland) Regulations 2007, and;
• The Town and Country Planning (Temporary Stop Notice) (Scotland) Regulations 2007.

There were 65 responses to the consultation which took place between November 2007 and February 2008. Roughly two-third came from PAs, community councils or other public bodies, with around one-third from business or professional interests. A small number of individual responses were also received.

MAIN FINDINGS

The Town and Country Planning (Amount of Fixed Penalty) (Scotland) Regulations 2007.

The 2006 Act introduces powers to allow planning authorities to issue a Fixed Penalty Notice ( FPN) where a person has breached the terms of either an Enforcement Notice ( EN) or a Breach of Condition Notice ( BCN). If the penalty is paid then the planning authority will not bring a prosecution for breaching the notice, however the person would still be required to remedy the breach and further action could be taken if they did not do so. This may include the PA taking direct action to carry out any remediation themselves and recovering the costs of the work from the person responsible.

The draft Regulations set out the amount of the penalty payable and included a provision that where a person continued to ignore the requirements of ENs or BCNs, there should be provision to issue FPNs with increased penalty levels. Where the penalty was not paid the PA would have the option to seek prosecution of the landowner or developer.

The consultation sought views on the proposal that for breach of an EN the penalty should be initially set at £1000. Where an EN was not complied with and the FPN paid, the PA may issue a further EN and, if this was not complied with, a FPN with a penalty of £1500. This process could be repeated with corresponding increments to a maximum of £5000 (compared to a maximum fine on summary conviction of £20,000). For a breach of a BCN the penalty would be £100, rising through increments of £50 to a £300 maximum (the maximum on summary conviction being £1000). The maximums were set in accordance with established legal precedent that a fixed penalty should not exceed 30% of the maximum fine possible on conviction.

Summary of consultation responses:

• Majority of respondents supported the proposal that penalties should increase for continuing breaches.
• The minimum and maximum levels of fine were acceptable but the number of notices issued before the maximum was reached should be decreased. There should be a correspondingly higher increase in the level of the penalty at each stage. There were some calls for the level of fine to be much higher.
• Some concerns were expressed that where a penalty was not paid and a prosecution brought, courts may impose a lower fine.
• A more major concern was raised by the Faculty of Advocates and other respondents with a legal background in that it might not be possible in law to raise the level of the penalty for repeated breaches on the basis that, in effect, the same breach was being committed each time and it was therefore wrong to have increasing penalties.

The Town and Country Planning (Notification and Display) (Scotland) Regulations 2007

Provisions in the 2006 Act will require developers to notify PAs, in advance, of the date on which they intend to commence work on any development for which planning permission has been granted. This is termed a Notice of Initiation of Development ( NID). In addition, for major, national and bad neighbour developments, the developer will be required to display publicly a notice or notices (On-site Notice) providing information on the development.

The purpose of a NID is to alert PAs to development currently underway within their areas. Development does not necessarily commence immediately following the grant of permission and there may be conditions that require certain work to be carried out in advance of development commencing. Requiring developers to submit a NID will enable PAs to be aware of active developments in their areas and prioritise allocation of resources to pro-active enforcement (for example, arranging visits to check that conditions have been met, etc).

On-site notices are intended to increase public awareness of development taking place in the local area and to provide contact details where interested members of the public can obtain further information regarding the development and if necessary report alleged breaches of planning control.

In both cases the regulations relate to the information to be contained in the respective notices. In particular, the consultation sought views as to whether a NID should contain details of a developer's previous planning enforcement history, on the basis that this information would be useful to a PA in deciding the level of monitoring of planning compliance that should take place in respect of a development.

Summary of consultation responses:

• There were differing views regarding the inclusion of information in a NID. While some community groups felt that the more information provided the better, PAs and developers raised a number of valid concerns around the collection and verification of such information. The concerns included; how changes of name by developers would be addressed, whether developers would be required to provide information for sub-contractors, what penalties there would be for providing false information and what time limits should be in place for information.
• With regard to the information to be displayed in On-site Notices, the Scottish Government proposed that notices should state if there were conditions attached to the grant of planning permission and, if so, provide details of how the public could find out more about the conditions that applied. Some correspondents called for the actual conditions to be displayed in full in the notice.
• Other information that respondents wanted to see displayed in On-site Notices included such details as telephone contacts for the developer or their site agent, sketches of the proposed development, named contact people, etc.
• Views were also sought on the categories of development where an On-site Notice would be required to be displayed. In general respondents supported the proposed categories, although there were some calls that notices should be displayed for all developments, or for other developments in particular circumstances or location.
• Finally, views were sought on the siting and display of On-site Notices. A number of comments were made regarding prominence of notices, public accessibility and legibility. Some respondents also raised the issue of who would be responsible for maintaining notices.

The Town and Country Planning (Temporary Stop Notice) (Scotland) Regulations 2007

Temporary Stop Notices ( TSNs) will provide PAs with the power to issue a notice requiring an immediate halt to any activity they consider is a breach of planning control where they consider also that, if left unchecked, there is a risk of serious damage to the environment or amenity.

The 2006 Act allows regulations to be made to define situations where use of a TSN would not be permitted. Under the provisions of the Act itself a TSN could not be used to prohibit use of a building as a dwellinghouse (i.e. a TSN could not be used to evict people from a building they were living in). The proposed regulations consulted on would similarly prevent a TSN being used to stop people living in a caravan where the caravan was their primary residence, unless there was serious risk that the siting of the caravan would cause harm to the occupants or public interest.

Summary of consultation responses:

• PAs and community councils welcomed the TSN measures and were keen that there should be as few restrictions as possible.
• Business interests were supportive and recognised the role of such notices in preventing irreparable damage to the environment or amenity. Some business respondents expressed concern that PAs might use TSNs as a 'first' rather than a 'last' resort, and that widespread use could have a negative effect, delaying development and increasing costs.
• On the specific issue of extending the same protection to caravan dwellers as those who lived in buildings, there was almost total support. Only one response (a local authority) was against the proposal.