Planning Enforcement Charter

This legislation is the Town and Country Planning (Scotland) Act 1997 as amended by the Planning etc. (Scotland) Act 2006. Listed building enforcement notices are covered by the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997. 

The Planning Acts are available from HMSO, 71 Lothian Road, Edinburgh and from the Government's website. 

Government policy on planning enforcement is set out in Planning Circular 10/2009: Planning Enforcement. The circular is available from Scottish Government website.  

Breach of Condition Notice 

This is used to enforce the conditions applied to any planning permission. It comes into effect 28 days after being served. It may be used as an alternative to an enforcement notice (see below) and is served on any person carrying out the development and/or any person having control of the land. There is no right of appeal. Failing to comply with a breach of condition notice can result in the council seeking to prosecute, with a fine of up to £5,000.       

Enforcement Notice 

This is generally used to deal with unauthorised development but can also apply to breach of planning conditions. There are similar notices and powers to deal with listed buildings (see below), and advertisements. An enforcement notice will specify: 

• A notification period before it comes into effect (a minimum of 28 days - but see the section 8 below on advertisements)
• The steps that must be taken to remedy the breach
• A further period (known as the compliance period) which is set by us and gives the recipient time to carry out any works required to comply with the notice. There is no minimum or maximum period, so long as the amount of time allowed is reasonable and reflects the amount of work that may need to be undertaken 

There is a right of appeal and the terms of the notice are suspended until a decision is reached. 

Failure to comply with an enforcement notice within the time specified is an offence and may lead to a fine of up to £50,000 in the Sheriff Court. Failure to comply may also result in us taking Direct Action to correct the breach (see other powers below). 

Listed Building Enforcement Notice 

This must be served on the current owner, occupier and anyone else with an interest in the property. The procedures are similar to those outlined above. The notice must specify the steps to be taken to remedy the breach and a final date for compliance. Failure to meet the terms of the notice by the date specified is an offence. There is the right of appeal to Scottish Ministers against the notice. Breaches of listed building control are a serious matter. It is a criminal offence to undertake unauthorised works to demolish, significantly alter, or extend a listed building. In certain circumstances, this can lead either to an unlimited fine or imprisonment. 

Stop Notice 

This is used in urgent or serious cases where unauthorised activity must be stopped, usually on grounds of public safety. When a stop notice is served, the planning authority must also issue an enforcement notice. There is no right of appeal against a stop notice and failure to comply is an offence. An appeal can be made against the accompanying enforcement notice. If a stop notice is served without due cause, or an appeal against the enforcement notice is successful, the Stop Notice may be quashed, and the council may face claims for compensation. The use of stop notices therefore needs to be carefully assessed by us. 

Temporary Stop Notice (TSN) 

This is used to require the immediate halt of an activity which breaches planning control. The provisions make an exception in that a TSN cannot prohibit the use of a building or a caravan as a dwelling house. TSNs are enforceable for 28 days, after which they time, they expire. They may, however, be followed by further enforcement action such as an Enforcement Notice and Stop Notice. There is no provision to appeal against a TSN. 

Fixed Penalty Notice (FPN) 

This provides us with an alternative process, instead of the option to seek prosecution, to address situations where a person has failed to comply with the requirements of an enforcement notice (EN) or a breach of condition notice (BCN). By paying the penalty imposed by the FPN, the person will discharge any liability for prosecution for the offence. They will not, however, discharge the obligation to comply with the terms of the EN or BCN and we retain the power to take direct action to remedy the breach and recover the costs of such work from that person. We are not required to offer the option of paying a fixed penalty. Any decision to do so would be dependent on considerations such as the scale of the breach and its impact on local amenity.  

Notice Requiring Application for Planning Permission for Development Already Carried out 

Where we consider that a development which does not have planning permission may be acceptable (for example, they consider that it might be granted planning permission) they may issue a notice requiring the landowner or developer to submit a retrospective planning application. This application will be considered on its planning merits and handled in the same way as any other planning application. Issuing such a notice does not guarantee that permission will be granted; we may, on consideration of the application, decide instead to refuse permission, or to grant permission subject to conditions or alterations to make the development acceptable.

Planning Contravention Notice 

This is used to obtain information about activities on land where a breach of planning control is suspected. It is served on the owner or occupier, on a person with any other interest in the land or who is carrying out operations on the land. They are required to provide information about operations being carried out on the land and any conditions or limitations applying to any planning permission already granted. Failure to comply with the notice within 21 days of it being served is an offence and can lead to a fine in the courts. 

Notice under Section 272 (of the Town and Country Planning (Scotland) Act 1997) 

This provides limited powers to obtain information on interests in land and the use of land. Failure to provide the information required is an offence and can lead to a fine by the courts. 

Notice under Section 179 (of the Town and Country Planning (Scotland) Act 1997) 

This allows us to serve a notice on the owner, lessee or occupier of land which is adversely affecting the amenity of the area. This is also known as an 'Amenity Notice' and sets out the action that needs to be taken to resolve the problem within a specified period. As it can prove difficult to recover such costs and given budgetary constraints the use of such notices needs to be carefully assessed. These will normally only be pursued when there is a significant adverse impact upon amenity of an area; the works required are in the wider public interest and there are no other means of addressing the concerns. 

Interdict and Interim Interdict 

An interdict is imposed by the courts and is used to stop or prevent a breach of planning control. Court proceedings can prove costly, and councils normally only seek interdicts in serious cases or where enforcement notices have been ignored in the past. However, we can seek an interdict in relation to any breach without having to use other powers first. Breaching an interdict is treated as a contempt of court and carries heavy penalties. 

Direct Action 

These powers enable us to carry out any steps required by an enforcement notice, including such steps to discontinue a use of land and such steps for the purpose of making development comply with the terms of any planning permission which has been granted in respect of the land, or for the purpose of removing or alleviating any injury to amenity which has been caused by the development. If direct action is undertaken, we will seek to recover any costs it incurs from the landowner.