Planning Enforcement Strategy 2020

This strategy addresses the following issues:

• The relevant Development Plans/Planning Policy
• The type and incidence of enforcement issues
• The enforcement function
• The procedure for dealing with enforcement cases
• Proceeds of Crime (POCA)
• What if I am contacted by the Council about a breach of planning control
• Resources and priorities of the Enforcement Services
• The monitoring of building activity or development
• Member involvement and delegation
• Helpful links
• Contacting the Council and confidentiality

Development within Wealden District Council is subject to control having regard to development plan policy and other material considerations.

The relevant Development Plans include:

• Wealden Local Plan adopted December 1998 (Saved Policies)
• Core Strategy Local Plan (Adopted February 2013)
• Wealden Design Guide 2008
• NPPF – National Planning Policy Framework
• NPPG – National Planning Policy Guidance

You can view Wealden District Councils policies through the Planning Policy pages.

The high quality of Wealden’s environment is one of its major assets. The District contains some of the finest countryside in England, rich in both landscape and wildlife diversity. The national importance of its landscape is reflected in the fact that almost two thirds of the area is covered by designated Areas of Outstanding Natural Beauty. The District’s value for wildlife is recognised by 32 Sites of Special Scientific Interest, which have national status.

The development plans seek to protect, enhance and respectfully manage the countryside, including landscape and wildlife diversity, wherever possible. The Council seeks to ensure a high standard of design also taking into account Wealden’s rich and valued legacy of listed buildings and conservation areas.

Notwithstanding this, the Council also seeks to support the development of a prosperous economy with a balance between homes, jobs and recreation and leisure facilities in both rural and urban areas and a desire to protect existing residential amenity.

NB: It should be noted that some parts of the district fall within the South Downs National Park Authority and are subject to planning controls by the National Park as the Local Authority

The key matters when considering any planning enforcement relate to the principles above. However the planning policy context needs to be considered along with other issues such as:

• Understanding of the inconstant and often complex world of Permitted Development (PD) and the Prior Notification regime. Which may allow for example PD development activity outside an AONB area whilst not allowing the same PD rights in an AONB but guidance suggesting permission should not be unnecessarily withheld.
• Ministerial statements which may or may not necessarily carry planning weight.
• Case law will also sometimes have an effect on the consideration of planning enforcement cases.
• Consideration of a planning enforcement case may have overlaps with other enforcement regimes better able to deal with the problem at hand.
• In such cases a view needs to be taken to which regime needs to take a lead in any breaches in enforcement controls.
• Consideration of Local Government Ombudsman guidance and good practice e.g publications such as “Not in my back yard”, Local People and the planning process December 2014.

A wide variety of enforcement issues, with different levels of complexity, are encountered in Wealden. This is due to the rural nature of the district, its large size and its diverse array of landscapes, set against a background of increasing development pressure. Many cases now require a multiagency approach by pooling together expertise and regulatory powers. Common causes of concern include:

• Issues arising from the speculative subdivision of agricultural land
• Unauthorised traveller sites
• Other unauthorised mobile homes and caravans in rural areas
• Unauthorised works to listed buildings and protected trees
• The conversion of agricultural buildings and the intrusion of ‘domestic’ land-uses onto rural land
• Perceived loss of residential amenity

Other unauthorised development, such as additions to dwellings, signs, and disruptive businesses run from houses, commonly occur within the district’s towns and villages.

The service currently undertakes the investigation of alleged breaches of planning control which include:

• Unauthorised development and change of use
• Land adversely affecting the amenity of the neighbourhood
• Breaches of extant enforcement and stop Notices
• Breaches of Tree Preservation Orders
• Unauthorised advertisements
• Works to Listed Buildings and buildings in Conservation Areas
• Alleged breaches of planning permissions
• Not built in accordance with approved plans
• Non-compliance with planning conditions
• Selective monitoring of approved planning applications

The Planning Enforcement service cannot investigate:

• Boundary wall disputes and other land ownership issues as these are civil matters outside of the planning legislation
• Legal covenants
• Devaluation of property
• Obstructions, parking, traffic enforcement and any other matters
• affecting the Public Highway
• Graffiti, littering, fly tipping, abandoned vehicles
• Anti-social behaviour
• Dangerous structures
• Noise nuisance
• Events/potential breaches that may occur in the future
• Odour/Pollution issues
• Other Civil Matters

Links are provided for the relevant bodies who oversee these matters in the contacting the council section.

An enforcement investigation can be lengthy and complex. The time taken to determine each case will vary depending on the site, people involved, and the type of breach reported.

Some of the factors which can be perceived as a lack of action by interested parties can include:

• Gathering of evidence in order to take formal action (which can be time consuming)
• Awaiting the submission of a retrospective planning application
• Awaiting the decision from a submitted retrospective planning application
• Continual negotiation in order to resolve the matter
• Time periods of compliance once a notice has been served
• Awaiting the results of an appeal against formal notices
• Personal circumstances of the person(s) who the complaint has been
  raised against
• Legislative procedures and time scales with Court proceedings

All planning enforcement investigations observe the following principles:

• All legitimate complaints regarding breaches of planning control will be considered. Anonymous complaints will not normally be investigated, unless they allege serious breaches of planning control
• Undertaking site visits, where appropriate, to the alleged unauthorised development and ascertaining what activities are taking place there Complaints will be prioritised, dependent on their anticipated harm,
  concern regarding harm to policy as well as amenity
• Complainant’s identities will be kept confidential within the Council but maybe given to other departments if deemed appropriate, unless subsequent Court action warrants their evidence being made public
• Complainants will be kept informed of progress of investigations and eventual outcomes
• Enforcement action is discretionary and will only be taken where the breach on which it is based would warrant a refusal of planning permission
• Formal action will be proportionate to the breach and will generally be held in abeyance whilst valid planning applications, Certificates of
  Lawfulness or appeals are determined, provided these applications are made in good faith and are not primarily aimed at delaying the enforcement process.

the general time frames for an investigation are:

• All complaints will be acknowledged within 5 working days (if address is known)
• Within 25 days of receiving a valid complaint, an officer will have attended the site and decided on a way forward
• The complainant/contravener will be made aware of the authority’s decision made at the relevant Sub-Committee within ten working days of the Committee date
• Where planning breaches are minor or fall outside of the agreed priorities, complainants will be informed either verbally, electronically or by post of the position

The priorities and corresponding resource implications of the enforcement function will be exercised in a discretionary way by planning enforcement officers. Minor breaches will not necessarily be the subject of enforcement action.

POCA provides a robust set of powers for investigating and ordering the restraint and confiscation of assets that have been acquired as a result of criminal activities.

Included but not limited to: POCA can be sought where the Council issues an Enforcement Notice and it is subsequently not complied with and it becomes a criminal offense. Other instances could include unauthorised works to a listed building or works to a protected tree. As part of any qualifying case the Council will have to assess the extent of the financial gain obtained as a result of the criminal offense and balance this against the public interest tests for applying for POCA within the Courts

If you are contacted about an alleged breach of planning control you are entitled to know what the allegation is (but not who has made it) and have the opportunity to explain your side of the case.

Your co-operation will be sought to correct the breach, either by removing or modifying the unauthorised development or by ceasing the unauthorised work or use. A reasonable period of time will be allowed for you to do this.

In some circumstances you may be invited to submit a retrospective planning application if it is considered by officers that permission may be granted.

If you are running a business which is threatened by enforcement action you will, if appropriate, be given time to identify alternative premises so as to minimise the possible impact on the business. This does not mean that the enforcement action will be unreasonably delayed or stopped.

If you are issued with an Enforcement Notice, the Notice will include the precise details of the breach, the reasons for the action, the steps required to overcome the problem and the time period for compliance.

You may be served with a ‘Planning Contravention Notice’ that requires you to provide information concerning the development carried out. This Notice is used to establish the facts of what has occurred so that the Council can determine whether a breach of control has taken place, and whether formal enforcement action is appropriate. The legal implications of not completing and returning the Notice will be explained to you.

The Council is subject to the GDPR (General Data Protection Regulation 2018). As such certain information will not be released if requested, including but not limited to the personal details of the person/s who have made a complaint against you or any information that is restricted under Legal Privilege.

Wealden District Council expects all members of the public to behave in a respectful and courteous manner at all times towards its employees. Accordingly, we will not tolerate any form of threatening behaviour or verbal abuse towards any of our staff.

The size and nature of Wealden means there will be insufficient resources to satisfy all the real and perceived demands for enforcement investigation and action. This position reflects that of all similar regulatory teams i.e. Building Control, Environment Health, Police, fire service etc. and requires a risk-based approach to service provision.

As stated in the introduction the Planning Authority has discretionary powers to enforce not a duty. So the decision to investigate by officers will be on a case by case basis. The following tests will assist in such decision making:

The following priorities are based on the criteria where: damage is irreversible and prosecutable (Priority 1) or, serious (Priority 2) or, the more minor breaches (Priority 3) and anonymous complaints which are not serious.

Priority 1:

• Immediate works to harm or damage designated heritage asset (listed buildings, within conservation areas, scheduled monuments, and registered parks and gardens)
• Felling / damage TPO trees or, trees within a conservation area National Park
• Unauthorised development that is causing harm and is nearing immunity from enforcement action

Priority 2:

• Stationing new residential caravans in the countryside
• Starting work on a site without discharging pre-commencement conditions
• Works resulting in landscape harm to sensitive designations
• Works likely to be harmful to public health, or compromise highway safety
• Historic works that have already harmed or damaged a heritage asset (listed buildings, within conservation areas, scheduled monuments, and registered parks and gardens) where there is no suggestion that these works are ongoing or likely to commence again

Priority 3:

• Other breaches of planning control
• Display of advertisements
• Untidy land

It should be noted that planning enforcement should never be viewed as a punitive act or as punishment, it is simply a process to either regularise or remove an unacceptable breach. Therefore, a refusal of retrospective planning application which is not based on sound planning considerations or taking enforcement on a minor/technical breach would render the Local Authority liable for costs, and is not good practice.

Monitoring is based on a risk assessment method. Commencement notices are received from Building Control, the more significant construction sites are investigated by checking whether prior notification conditions have been complied with. Other monitoring of building activity relies upon complaints received. Resources do not allow for targeted ongoing monitoring and indeed, in a District as large as Wealden, it is unlikely that proactive monitoring could be justified.

The Council’s Planning Enforcement monitoring strategy is risk-based and applied in relation to the existence and seriousness of breaches

Elected members will be involved through relevant committees in the following aspects of planning enforcement:

• Setting resources for enforcement
• Setting enforcement policy
• Determining whether enforcement action should be taken on significant planning breaches through the committee structure
• Monitoring performance and action of the enforcement service

Through the scheme of delegation officers shall be authorised to establish the appropriate course of action to be taken in respect of any and all breaches of planning controls.

All decisions on enforcement will be taken by officers other than where enforcement action is recommended to the relevant sub-committee by officers or where the local member for the relevant site has in writing and based on relevant material planning reasons, requested a report to Committee setting out the enforcement options for an alleged enforcement case in their ward.

It is anticipated that this Strategy will be reviewed when necessary if there is a material change in legislation, guidance or national or local policy.

• Town and Country Planning Act 1990 (as amended)
• Planning (Listed Buildings and Conservation Areas) Act 1990 (as amended)
• Permitted Development Order 2015
• Permitted Development Technical Guidance
• Interactive House Permitted Development
• Effective Enforcement Central Government Guidance
• Advertisements
• Lawful Development Certificates (LDC)
• Tree Preservation Orders (TPO)
• Listed Building enforcement and other enforcement

All investigations are dealt with in the strictest confidence and details of the person reporting will not be made known without their agreement. However, the nature of the alleged breach is not confidential. Having said that, be aware that if the complaint progressed into a court of law you may be required to provide evidence.

Enforcement Team Contact Details

Telephone: 01892 602006

Email: enforcement.environment@wealden.gov.uk

Post: Planning Enforcement, Council Offices Vicarage Lane, Hailsham, East Sussex, BN27 2AX

Contact Details of the South Downs National Park Authority (SDNPA)

Telephone: 01730 819278 or 01730 819352

Email: enforcement@southdowns.gov.uk

Post: South Downs National Park Authority, South Downs Centre, North Street, Midhurst, West Sussex, GU29 9DH

Other useful contacts:

East Sussex Country Council for obstructions, parking, traffic enforcement and any other matters affecting the Public Highway

www.eastsussex.gov.uk/contact-us  Tel: 0345 60 80 193

Police non-emergency. Tel: 101

Wealden District Council  Street Scene for graffiti, littering, fly tipping, abandoned vehicles

The East Sussex Building Control Partnership for dangerous structures

Wealden District Councils for noise nuisance and odour or pollution issues