Last month's Open Door looked at the Planning etc. (Scotland) Bill's proposed changes to the current planning system and in particular the new development management system - the new term describing the planning application and decision making process. The Bill's primary objective is to modernise the current system by promoting greater efficiency and providing local people with better opportunities to influence planning decisions which affect them.

In this second of two articles reviewing the Bill, we look at the proposals in relation to two specific areas - the enforcement process and Tree Preservation Orders.

Enforcement

The Bill's key points:-

  • introduction of a new temporary stop notice
  • "enforcement charters" to be published and regularly reviewed by planning authorities
  • new requirement for developers to notify their intention to start development, and the completion of the development
  • a request to apply for retrospective planning permission will constitute enforcement action

Current Enforcement Procedures

The new system of development management would be ineffective if it had no teeth. Failure to comply with planning control must result in sanctions being imposed on the offender and the current enforcement system makes specific powers available to the planning authorities through the Town and Country Planning (Scotland) Act 1997.

Where a developer proceeds with building or engineering work which required planning permission but this has either been overlooked or ignored, or, where conditions attaching to a planning permission have been ignored, the planning authority will normally try to rectify the breach through informal discussions. If this does not have the desired effect a planning contravention notice (PCN) is normally served by the planning authority before they take further action. The PCN is intended to flush out further information where a breach is suspected but more detail is required in order to make a decision on whether further enforcement measures are required. It is an offence to fail to comply with the PCN within 21 days, or to give false information and the PCN can be served on a land owner, occupier or any other person with an interest in the land, if it is materially affected by the notice.

The same people could also be served with an enforcement notice which will set out any remedial steps required, or any activity which must stop, and the timescale for compliance. The enforcement notice takes effect on a date which must be at least 28 days after the notice was served, although there is a right of appeal to the Scottish Ministers and any retrospective planning permission will cancel out the enforcement notice. It is an offence to fail to comply with an enforcement notice with potentially unlimited fines if convicted.

If a planning authority considers that urgent action is required to deal with a breach of planning control, it can issue a stop notice. This can be served at the same time as the enforcement notice, or afterwards, if the enforcement notice has yet to take effect. The stop notice will set out the steps required to comply with the notice, which will usually mirror those in the enforcement notice, although the stop notice may only relate to part of the breaches specified in the enforcement notice, or part of the land affected. It can be served on anyone who appears to have an interest in the land or to be involved in the activities constituting the breach. Unless the planning authority considers the breach to be so urgent that immediate action is required, the stop notice becomes effective not less than 3 and not more than 28 days after its issue. There is no right of appeal here, although it can be challenged on a point of law through judicial review and there are certain circumstances where compensation can be claimed against the planning authority for loss of income or damage as a result of the stop notice. As with the enforcement notice, failure to comply with the stop notice constitutes an offence with potentially unlimited fines if found guilty.

A breach of condition notice will deal with breaches of conditions attaching to a planning permission. This can be served on anyone carrying out a development or having control of the land in question. It will specify the steps required to comply or activities which must cease and must allow not less than 28 days for compliance with its terms. Again, failure to comply is an offence subject to summary prosecution in the sheriff court, with no right of appeal against the issue of the notice, although points of law can be judicially reviewed.

What happens if the notice falls on deaf ears, or an appeal is decided in favour of the local authority, and the offender still fails to comply? Powers of direct action allow the authority to enter the land and carry out the remedial action specified in the enforcement notice, reclaiming the cost of so doing from the offender. The local authority can also apply to the courts for an interdict where a breach has or is about to happen.

The Bill's New Enforcement Mechanisms

The Bill's most effective introduction is a new class of enforcement notice - the temporary stop notice. This is similar to the stop notice but has an immediate effect. It should prove to be a useful new tool to planning authorities who can issue a temporary stop notice if they consider that a possible breach of planning control needs to be stopped immediately. The notice must set out the remedial steps required and the reasons for the issue of the notice. It can be served on the land owner, the person carrying out the offending activity, or anyone with an interest in the land, including any occupiers and must also be displayed on the site itself. The notice will take effect from the time it is posted at the site and can last for up to 28 days, during which time an enforcement notice and stop notice may also be issued.

It will come as no surprise that failure to comply with a temporary stop notice is an offence with potentially unlimited fines if convicted. As with the stop notice, the person subject to the notice can claim compensation from the planning authority in certain circumstances:-

  1. where planning permission for the activities specified in the temporary stop notice is granted while the notice is still in force
  2. where the temporary stop notice is withdrawn by the planning authority
  3. where a certificate of lawful use is issued for the activities set out in the temporary stop notice

What the temporary stop notice cannot do is prohibit the use of a building as a dwelling, nor can it apply where the relevant activities have been taking place for more than 4 years, although the latter exemption does not apply to certain situations such as the dumping of refuse. Regulations will prescribe certain other exceptions where the temporary stop notice cannot bite.

The Bill will also introduce new notification requirements  - developers will be required to notify the planning authority of their intention to start their development and again when the development is completed. It is hoped that this will alert planning authorities to activities of which they would not otherwise have been aware.

A developer's application for retrospective planning permission would in future constitute enforcement action too.

A new "Enforcement Charter" is also introduced by the Bill. This would be published by every planning authority and re-published at least every two years, or as directed by the Scottish Ministers, and will require to be regularly reviewed. Each authority's charter will contain details of the planning authority's policies on enforcement action. It will set out how someone can notify any apparent breach of planning control to the planning authority and how to complain about the authority taking enforcement action. It will also specify how the authority will deal with those complaints.

Tree Preservation Orders

Tree Preservation Orders (TPOs) are designed to protect vulnerable or important trees or groups of trees or woodlands. An order protects a tree from cutting down, uprooting, topping, lopping, wilful damage and destruction and roots are protected too. The Bill introduces new proposals seeking to amend the TPO system. The new proposals aim to streamline the current regime, create a duty on planning authorities to review the TPOs in their area and extend TPOs to include replacement trees.

Tree protection legislation has not changed much in the last 30 years. Relevant trees tend to be protected in three ways, all of which fall under the umbrella of the Town and Country Planning (Scotland) Act 1997:-

  • the service of a Tree Preservation Order
  • the imposition of conditions attaching to a planning consent relating to trees on the site
  • the exercise of particular powers to control works to trees in conservation areas

The Bill concentrates on the first of these options and has seven specific proposals:-

1. Duty to Review

The planning authority will be placed under a duty to review their existing TPOs. Although change can be slow in the world of trees, it is important to have accurate information on relevant trees in the area so that enforcement can be carried out in the event of breach.

2. Scope of TPO

TPOs are currently served in the "interests of amenity". This will be expanded to recognise a tree's cultural or historical significance. This will deal with the existing problem of a TPO being challenged on the basis of "amenity" being determined according to visual criteria - a reprieve for ugly trees!

3. Statutory Undertakers

Where statutory undertakers such as electricity operators are required to work on protected trees they will require to notify the planning authority of their activities in future.

4. Streamlining the Process

There are currently two ways of making a TPO and the new Bill proposes to streamline this into one. Whereas most TPOs are currently made with immediate effect, all TPOs will apply immediately. The planning authority will have six months in which to confirm the TPO, which involves publicising, consulting etc, or the Order will expire. 

5. Rights of Access

The Bill gives local authority officers a right of access to relevant land in order to publicise the TPO thus ensuring that anyone who is about to carry out works on a protected tree can be made aware of its protected status more quickly than at present.

6. Confirmation timescales

The new proposals aim to ensure TPOs are confirmed timeously.

7. Replacement Trees

The Bill addresses the situation where a tree covered by a TPO is cut down - the planning authority can require a replacement tree to be planted and in future the original TPO will also apply to the replacement tree.

The full text of the Planning etc. (Scotland) Bill is available from the website of the Scottish Parliament at http://www.scottish.parliament.uk/business/bills/51-planning/b51s2-introd.pdf.  

The planning White Paper can be accessed from the Scottish Executive's website at http://www.scotland.gov.uk/Resource/Doc/54357/0014194.pdf.

The policy memorandum on the Bill is available from the Scottish Parliament's website at http://www.scottish.parliament.uk/business/bills/51-planning/b51s2-introd-pm.pdf

An overview of the consultation responses relating to TPOs can be accessed on the Scottish Executive's website at http://www.scotland.gov.uk/Publications/2005/06/03155410/54115

 

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