Document

Local Enforcement Plan

1. Planning Enforcement at Horsham District Council

1.1 Horsham District Council (‘the Council’) takes a proactive approach in the consideration of planning enforcement matters and breaches of planning control, and the Council has its own dedicated Planning Compliance Team (‘the Team’), which sits within the Development Management Department. The Team investigates alleged breaches of planning control and works to remedy unacceptable unauthorised development in the Horsham District.

2. South Downs National Park Authority

2.1 The Council undertakes planning enforcement (not for minerals and waste development) in the part of the District which lies within the South Downs National Park on behalf of the South Downs National Park Authority (‘SDNPA’). For details of the approach to planning enforcement in the National Park please refer to the SDNPA’s Enforcement Guide.

3. What is a breach of planning control

3.1 A breach of planning control is defined in the Section 55(1) of the Town and Country Planning Act 1990 as “the carrying out of a development without the required planning permission, or failing to comply with any condition or limitation subject to which planning permission has been granted”.

3.2 The following list sets out the main scenarios in which a breach of planning may be considered to have occurred:

Building work, engineering operations and material changes of use that are carried out without first obtaining planning permission or outside the scope of Permitted Development under the Town and Country Planning (General Permitted Development) Order 2015;
Development that has been granted planning permission but is not carried out in accordance with the approved plans;
Failure to comply with conditions or the terms of a legal agreement attached to a permission or consent;
The unauthorised demolition of a building within a conservation area without planning permission, or which has not had prior approval, if required;
Works carried out to a listed building (both internal as well as external), which affect its historic character or setting, without listed building consent being granted;
The unauthorised felling or carrying out of works to a tree which is protected by a Tree Preservation Order; or which is within a Conservation Area; and rural agricultural hedgerows;
The display of a sign or advertisement without first obtaining advertisement consent;
Failure to properly maintain land so that it affects the visual amenity of the area;
Failure to comply with the requirements of enforcement notices, breach of conditions notices and stop notices.

4. What is not a breach of planning control

Internal works to a non-listed building;
Matters controlled by other legislation such as Building Regulations/ public nuisance/ Highways/ or the Environment Agency;
Competition from another business;
On street parking of commercial vehicles in residential areas;
Obstruction of a highway or public right of way (the Police or Highways Authority may be able to get involved);
Parking a caravan within the residential boundary of a property provided that its use is ancillary to the dwelling;
Clearing land of overgrowth, bushes and trees (provided they are not subject to a Tree Preservation Order, within a Conservation Area, or subject to a planning condition, or owned by the council);
Operating a business from home where the residential use remains the primary use;
Boundary disputes – disputes about ownership are a private matter and cannot be controlled under planning legislation (If the dispute relates to a High Hedge, further information can be found on our Hedges and high hedge disputes page
Loss of value to a neighbouring property;
Where development is Permitted Development;
Deeds and covenants may restrict what you can do with a site. It is therefore advisable to check before proceeding with any development. However they are a private matter between the signatories to the documents, and not a matter the Council can enforce.

It should be noted that a breach of planning control becomes immune from enforcement action if no formal action has been taken within the time limits set out in Section 171B of the Town and Country Planning Act 1990 (as amended). Essentially these are:

Operational development: Immune after substantially completed for 4+ years
Change of use of a building to a single dwelling house: Continuous occupation for 4+ years
Change of use: Continuous occupation at the same intensity for 10+ years
Breach of a condition on a planning permission: Continuous non-compliance for 10+ years
Advertisements: Continuous display for 10+ years

It should be noted that the immunity is dependent on various factors and is not automatic.

5. Key considerations in the investigation of alleged breaches of planning control

5.1 In the circumstances where an enforcement investigation identifies that unauthorised development has taken place, the decisive issue for the Council in considering whether it is expedient to continue with the investigation, is whether the development in question is unacceptable in planning terms such that planning permission would not be granted, and whether or not it is in the public interest to do so. It is important to note that the fact that a development does not benefit from the required planning permission is not in itself sufficient justification for pursuing the matter.

5.2 Where enforcement action is taken, it must be proportionate to and commensurate with the breach of planning control to which it relates. For example, whilst clearly harmful breaches of planning control should be addressed by appropriate means, it is not expedient to pursue minor or technical breaches which cause no planning harm or where unauthorised development is acceptable in planning terms.

5.3 Section 73A of the Town and Country Planning Act 1990 (as amended) allows for an application to be made to the Local Planning Authority where development has already been carried out. This is known as a retrospective planning application.

6. The investigation process

6.1 If you are concerned that a development or activity is taking place without planning permission or does not comply with a planning permission already granted, we would first encourage you to speak to your neighbour or the owner of the land where appropriate. If you do not wish to do so, or this is not possible for any other reason, you can report this to the Planning Compliance Team in one of the following ways:

complete and submit our online Report a planning breach form
or send an email to: planning.compliance@horsham.gov.uk

6.2 When reporting an alleged breach of planning control, it would be helpful if complainants could provide:

The exact address of the site complained about, as well as the location of the activity/building works within the site (a sketch plan and/or photographs are often useful);
Precise details of the nature of the activity, including the number of vehicular movements/vehicle registration numbers, opening hours, number and times of deliveries, or what time work commenced (as appropriate);
Details of the alleged contravener (if known);
Details of the effect that the alleged breach is having upon you in terms of noise, traffic, smells, overshadowing etc.
Photographs of the alleged breach can help to speed up and assist investigations.

6.3 Before the Council begins an investigation, we will also ask complainants to provide their name and contact details in confidence so that we can update them on progress (subject to ongoing matters within the investigation). All complainants’ details are treated confidentially and the Council will always seek to protect the identity of those making complaints, however in rare circumstances, the Council may be required to divulge details where an investigation results in enforcement action being taken which is the subject of an appeal or prosecution. However, we will advise anyone of this before it happens and it is extremely rare. If you are concerned about providing your details, then try contacting a local residents group, your Parish Council or your District Councillor, as they may be prepared to make the complaint on your behalf.

Please note: Whilst we appreciate that for many reasons you may prefer not to give us your details and remain anonymous, the Council reserves the right not to investigate anonymous complaints, especially if they are considered to be vexatious or when workloads are high, as we need to ensure that we use our resources as effectively as possible.

6.4 In many instances the assistance of the general public can be crucial to the success of enforcement action. For instance, Council officers cannot continually monitor sites. Accordingly, the Council relies upon the general public, residents associations, Parish Councils and amenity societies to both report and monitor alleged breaches of planning control.

6.5 Upon receipt of an alleged breach, we will check that the issue in question is a planning matter. If it isn’t, we will tell you, and where appropriate, forward the concern onto another relevant Council team or external organisation. At this stage, we may also request further information from you to help with the investigation, for example keeping a record of activity in respect of the use of land or buildings over an appropriate period.

6.6 The speed with which an investigation can be undertaken varies between straightforward cases which can often be concluded quickly, and more complex investigations which can take considerably longer. Investigating alleged breaches of planning control is often complex and time consuming. In order to make the most effective use of staff resources, it is necessary to give priority to those cases where the greatest harm is being caused, as it would be inappropriate to investigate and pursue all allegations with equal priority and intensity.

6.7 All investigations are prioritised by officers when they are first received, in accordance with the Council’s scheme of prioritisation, which is detailed below.

Priority 1: Immediate investigation (within 24 hours)

Unauthorised works (demolition) with respect to listed buildings;
Unauthorised works to protected trees (TPO’s) or trees in conservation areas;
Removal of landscape features protected by condition;
Certain types of demolition in a Conservation Area;
Unauthorised tipping operations, provided it is connection with operational development;
Gypsies or travellers on Council-owned land.

Priority 2: Investigation within 15 working days

Certain breaches of conditions attached to a planning permission e.g. wheel washing and materials (where a building is under construction);

Accesses onto classified roads;
Buildings not constructed in accordance with approved plans;
Certain breaches of conditions of a planning permission e.g. hours of work, parking provision and access requirements;
Unauthorised erection of buildings or works to land;
Unauthorised changes of use which are considered to be materially harmful to local residents and/or local amenity;
Unauthorised residential use of mobile homes/caravans’;
Other changes of use including businesses being operated from residential properties;
Advertisements;
New fences;
Floodlighting and the erection of satellite dishes;
Any other breaches of conditions of a planning permission.

6.8 If we are unable to investigate an issue that a complainant has raised, we will tell the complainant the reason for this. Once an investigation has commenced, and an initial site inspection and assessment have been made, we will tell the complainant what will happen next. We will confirm whether the complaint is best dealt with by a different department of the Council or an external organisation.

6.9 Where a complaint is made about any land or buildings, the owner may be contacted about the alleged breach of planning control by a member of the Planning Compliance Team. Anyone who is the subject of an investigation is entitled to know what the allegation is (but not who made it) and you will be given the opportunity to explain your side of the case. We are aware that sometimes people make complaints due to neighbour disputes, as such we will always seek to work with the parties to understand the true facts of the case.

6.10 Initially a member of the Planning Compliance Team will visit the site. Due to time constraints, this is usually without any prior warning to the owner or any tenants / employees at the site. The Council’s Planning Compliance Officers are authorised to visit a site to investigate and will show identification when they arrive. By virtue of Section 196A of the Town and Country Planning Act 1990 (as amended), Planning Compliance Officers do have the right of entry at any reasonable hour to enter any land to ascertain whether there has been a breach of planning control, and they also have powers to obtain a warrant of entry where access is refused or refusal is anticipated. Wilful obstruction of a person exercising a right of entry is an offence so you should always seek to work with the Planning Compliance Officer. However, we are required to give 24 hours notice to insist on entry to a residential property, but if occupants or owners are happy to allow us access, then we will usually take up that offer.

6.11 Planning enforcement can be a protracted process for reasons that are often outside of the control of the Local Planning Authority. In order to manage the expectations of the users of the service, we therefore also have the following standards/targets with regard the timescales to be taken in the investigation of the complaint. It should however be noted the following timescales are guides, as there may well be occasions where this is not possible (for instance in cases where a Planning Contravention Notice is issued in order to seek additional information, there is a statutory period of 21 days for the Notice to be completed and returned; or in cases where we have requested monitoring of the site to be undertaken.

Acknowledge complaint within 3 working days of receipt of complaint;
Undertake all site visits within 15 working days;
Close file within 15 working days of initial site visit where there is no breach of planning control identified, and inform the complainant*;
Close file within 15 working days of initial visit where there is a breach of planning control identified, but it is not expedient to take action, and inform the complainant;
Where a breach of planning control is identified, and formal enforcement action is proposed, the relevant papers will be provided to the Council’s Head of Legal & Democratic Services within 20 working days of the decision to take formal action.

6.12 There are a number of potential outcomes of an enforcement investigation, which are principally:

No further action will be taken in cases where no breach of planning control is identified (i.e. the reported matter has not occurred, has ceased, or is outside of planning control);
A request that a retrospective planning application is made in cases where a breach of planning control is identified, however Planning Compliance Officers consider that the unauthorised development could be made acceptable by the imposition of conditions to address any harm caused (landowners are legally able to apply retrospectively for planning permission by virtue of section 73A of the Town and Country Planning Act 1990 - by taking this approach, the planning merits of the development can be fully and openly considered. Such applications for retrospective planning permission are considered in the same way as those for proposed development, and the Council may, where it is appropriate and reasonable to do so, suspend any formal enforcement action whilst a retrospective planning application is being considered. However, where appropriate, the Council will not allow the application process to unreasonably delay enforcement proceedings);
No further action will be taken in cases where a breach of planning control is identified, but it is minor and there is no identified planning harm (in these instances, the Council will use its discretion not to take further action as it would not serve a useful purpose or be a good use of our resources to do so- in such cases the Council does not consider that it would be expedient to pursue the matter any further.
No further action will be taken in cases where the development is immune from enforcement action by virtue of time (Breaches of planning control become immune from enforcement action if they have existed for a certain period of time eg in the case of a material change of use the relevant period is 10 years; and in the case of a building the relevant period is 4 years. Note: There is no period of immunity for unlawful works to a Listed Building);
A breach of planning control may be identified which is unacceptable in planning terms: when this occurs, we may offer the party responsible for the breach the opportunity to resolve the matter voluntarily through negotiation, as opposed to straight to formal action (The Government advice is that enforcement action should not be used to penalise someone for carrying out development without first having obtained planning permission. The amount of time it takes to resolve a breach of planning control very much depends on the severity of the breach combined with the actions and/or reactions of the land owner(s)/occupier(s). Negotiations can often lead to a quicker resolution and to a better overall outcome than taking formal action. Where appropriate we will seek to negotiate with the owner/occupier and will consider options to address the planning harm resulting from the breach. The negotiation process may involve works being undertaken to remedy breaches of planning control to bring a development in line with permitted development rights, or involve the submission of a retrospective planning application.
Formal enforcement action will be taken in cases which cannot be satisfactorily resolved by negotiation, or the breach of planning control is considered to be so serious or continuing that it merits immediate action- in such cases the Council will take formal action without offering the offender an opportunity for the matter to be resolved voluntarily.

7. Formal action

7.1 In considering enforcement action, the Council will have regard to:

Whether the breach of planning control unacceptably harms public amenity, or the existing use of the land and buildings merits protection in the public interest;
Ensuring any enforcement action is commensurate with the breach of planning control to which it relates;
Enforcement action will not normally be taken to remedy trivial or technical breaches of planning control which are considered to cause no harm to amenity;
Statutory time limits for taking enforcement action;
Relevant planning policies within the Local Plan, Neighbourhood Plan, and the National Planning Policy Framework, and other material considerations, including where appropriate, the individual circumstances of the person, business, or other organisation in breach of planning control;

7.2 Enforcement action is discretionary. The Council has discretion as to whether to take enforcement action and it is not a mandatory duty to do so- i.e. just because something constitutes a breach of planning control this is not, in itself, a reason to take enforcement action. Even when it is technically possible to take action the Council is required to decide if such formal action would be “expedient” in the public interest.

7.3 There needs to be harm actually being caused that is of sufficient detriment to warrant action being taken. In other words, the Council must consider whether the breach of planning control unacceptably affects public amenity or safety, or whether the existing use of land or buildings merit protection in the public interest. As such a judgement has to be made in each case on its own planning merits, as to the seriousness of the breach and the level of any harm that it causes.

7.4 Apart from some listed building and advertisement cases, it is not a criminal offence to undertake works without the relevant consents. Whilst the Council will not condone wilful breaches of planning control, even if it is aware that someone is going to carry out works that require planning permission, it does not automatically follow that the unauthorised works will be stopped. There would have to be considerable harm for the Council to seek to stop an unauthorised development taking place. It is recognised that this can be very frustrating for complainants but the Council must operate proportionately and within the legislative framework.

7.5 In consideration of the above, formal planning enforcement action may be taken where:

The matter is so serious that it merits immediate action;
The matter has not been satisfactorily resolved on a voluntary basis.

7.6 The Council has given delegated authority to its officers to exercise the legislative powers available to it for breaches of planning control. The Council has a wide variety of tools that can be used if the decision is made to take formal action. These can be viewed on the GOV.UK: Ensuring effective enforcement webpage.

7.7 There is a right of appeal to the Secretary of State against an enforcement notice, a listed building enforcement notice and an advertisement discontinuance notice within a specified time frame. The notice itself will inform the recipient whether there is a right of appeal and the time limits. If an appeal is lodged in time with the Secretary of State, further enforcement action by the Council regarding this notice is usually suspended until the appeal decision is issued.

7.8 For information on how to make an appeal against a planning enforcement notice or how to submit comments on an appeal of an enforcement notice please visit the GOV.UK: Appeal enforcement notice webpage.

7.9 There is a right of appeal to the Magistrate’s Court for Section 215 (untidy land) notices issued under the Town and Country Planning Act 1990. Further enforcement action will be suspended if an appeal is lodged to the Magistrate’s Court, pending a decision.

7.10 There is no right of appeal for a temporary stop notice, a stop notice or a breach of condition notice.

7.11 Failing to comply with the requirement of a notice served under a relevant provision of the Town and Country Planning Act 1990 when the notice takes effect is a criminal offence and can be tried in the Magistrates’ Court

8. Prosecution

8.1 It is a criminal offence to carry out the following works, and the Council can pursue a prosecution against any person who carries out the following:

Unauthorised works to trees that are protected by a Tree Preservation Order or are within a Conservation Area;
Unauthorised works to Listed Buildings, and certain unauthorised works of demolition works within Conservation Areas.
Non-compliance with a temporary stop notice, stop notice, enforcement notice and breach of condition notice. On conviction, the offender will be liable on conviction in the Magistrates Court to a maximum fine of £20,000. More serious cases may be heard in the Crown Court, where the level of fine is unlimited. In addition, the Council will seek to recover the prosecution costs from the offender through a Costs Order on successful conviction.
The unauthorised display of advertisements- the legislation (Town and Country Planning (Control of Advertisements) Regulations 2007 and the Town and Country Planning Act 1990) which deals with advertisements is separate from that dealing with general planning matters. The display of an advertisement without formal consent is an offence, and the council does have the power to prosecute the person displaying it or a third party’s trade/ business publicised by the advert , if it considered that it harms the amenity of the area or public safety. There is no need for the Council to serve an enforcement notice, or similar, to be served. If a person is found guilty of an offence, they could be liable to a fine up to a maximum of £1,000. (Section 224(b) of the Town and Country Planning Act 1990 also includes “the advertisement gives publicity to his goods, trade, business or other concerns.” – that is a person who has a benefit to the advert.

8.2 Decisions to proceed with legal action will take account of the Code for Crown Prosecutors and in particular reference will be made to:

The availability of sufficient evidence to provide a realistic prospect of conviction; and
Whether it is in the public interest to proceed with a prosecution

8.3 The Council’s officers will always give evidence where possible. However, there will be some cases where it will be necessary to rely on evidence provided by witnesses from outside the Council. In such cases the case officer will advise the witness of the possible need to attend Court and to provide a written witness statement. At this point the name of the witness will unavoidably become public.

8.4 The Council will always look to recover costs from the offender where evidence suggests offenders have profited from the illegal works, as a deterrent and to remedy the breach.

9. Direct action

9.1 Where an offender fails to comply with the requirements of an Enforcement Notice, the Council may exercise powers available to it to enter land and carry out such works that are required by the Notice. All costs incurred by the Council in carrying out such works can be recovered from the landowner, where costs are not recovered, they can be registered as a charge on the land.

10. Enforcement Register

The Council has a statutory duty to hold and maintain an enforcement register. This records basic information and details in respect to what notices have been served. The notices contained in the statutory enforcement register are:

Enforcement Notices
Listed Building Enforcement Notices
Breach of Condition Notices
Stop & Temporary Stop Notices

10.2 The enforcement register is a public record. Any enforcement notices issued are available to view using the following link:

https://public-access.horsham.gov.uk/public-access/search.do?action=simple&searchType=Enforcement

11. Publicity and the role of District Councillors and Parish and Neighbourhood Councils in the Planning Compliance Team process

11.1 In order to raise public awareness of the risks associated with undertaking unauthorised development and thereby reduce incidences of such development, where appropriate the Council will publicise the outcome of cases in the local press or other media sources, and will seek to better inform the Public of what constitutes a breach of planning control, together what works can be undertaken as Permitted Development without planning permission, in the Council’s Our District magazine, and also by speaking to the Parish Councils.

11.2 We recognise that Parish and Neighbourhood Councils, and District Councillors can play an important role in the provision of the Planning Compliance service, as they have a great deal of local knowledge and awareness of activities in their area, and as such their assistance in liaising with local residents, reporting and monitoring enforcement matters is invaluable. As such, lists of new enforcement cases received will be sent to all Horsham District Councillors and Parish Councils within the District on a weekly basis. We will seek their views on the delivery of the service and will engage, where appropriate, on enforcement matters.

11.3 We will notify Parish and Neighbourhood Councils, and the Local Members of formal action taken in the areas they represent, and where appropriate we will seek their views on the delivery of the service and will engage, where circumstances permit, on enforcement matters. Again, where appropriate, we will encourage them to aid in the detection of breaches of planning control as well as contributing to monitoring developments and the compliance process.

12. Other services provided by the Planning Compliance Team

As well as investigating possible breaches of planning control, the planning compliance service is pro-active in:

Ensuring compliance when formal action has been taken;
The monitoring of key planning conditions on larger development sites to ensure that they are being carried out as required. Further information in relation to the Council’s approach to such monitoring can be found on the Council’s website;
Monitoring Legal Agreements attached to planning permissions to ensure that they are being carried out as required;
Ensuring that works subject to Building Regulations that require planning permission benefit from the necessary application

The Planning Compliance Team also has two dedicated officers who are responsible for the collection and spending of the Community Infrastructure Levy (CIL) charges thatare imposed upon new developments in the Horsham District. Further details in relation to CIL and the Council’s CIL Enforcement Policy can be found on the Council’s website.

13. Commonly used terms explained

13.1 When dealing with the Planning Compliance Team, we may use words such as those that follow, which can be explained as follows:

Discretionary- there is no statutory requirement for the Council to take enforcement action against alleged breaches of planning control. Enforcement action is based on planning merit which requires a planning judgement as to whether or not formal action is appropriate. In some cases, the council may decide that enforcement action will not be taken and that an alternative approach is more appropriate (e.g. a retrospective application, further negotiation, no further action etc).
Expedient/Expediency- when assessing whether formal action should be taken, the Council will ensure that the action is reasonable, proportionate and is in the public interest in order to achieve a satisfactory result. The Council will consider what the effect of formal action will be and if it will have a meaningful outcome, and it will not necessarily follow that in cases where a breach of planning control is identified, that formal action will automatically follow. The term expedient or expediency in planning enforcement relates to the ‘planning balance’ for taking action, not convenience.
Harm- when considering the expediency and subsequent proportionality of formal enforcement action, the Council have significant regard to the planning harm associated with a breach of planning control. Planning harm is the collective term used to describe the negative impacts of a development, and identified harm will need to be proven before formal action is taken.

14. Complaints about the Council’s Planning Enforcement Service

14.1 For those who are unhappy about the level of service received from the Planning Compliance Team, they should in the first instance discuss those concerns with the Planning Compliance Team Leader. If this does not resolve the matter, the concerns can be taken further through the Council’s Comments and complaints procedure.

14.2 If the Council’s response is still dissatisfactory, the Local Government Ombudsman can be contacted in writing, they will determine if the concerns will be investigated. Please note that the Local Government Ombudsman will only investigate if the Council’s internal complaints process has been completed, and will only be concerned that the correct procedures have been followed. The Ombudsman has no power to reverse the Council’s decision.

15. Other useful links

15.1 The Town and Country Planning Act 1990 (as amended) and Planning (Listed Buildings and Conservation Areas) Act 1990 (as amended) are the basis of the planning process, and provide nearly all of the enforcement powers available. Further guidance is published by the Department for Communities and Local Government, which provides information and standards to consider, when dealing with issues and alleged breach of planning control.

Town and Country Planning Act 1990 (as amended)

Planning (Listed Buildings and Conservation Areas) Act 1990 (as amended)

The Planning and Compensation Act 1991

The Town and Country Planning (General Permitted Development) (England) Order 2015

Planning guidance: Advertisements

The Town and Country Planning (Control of Advertisements) (England) Regulations 2007

South Downs National Park Authority (SDNPA)

GOV.UK: Effective Enforcement

GOV.UK: Lawful Development Certificate

16. Download this document as a PDF

Horsham District Council Local Enforcement Plan.pdf (PDF File, 268.6 KB)