Planning enforcement charter

A breach of planning control is not a criminal offence.

The purpose of planning enforcement is to resolve the problem rather than to punish the mistake. In addition, any action taken has to be appropriate to the scale of the breach.

We have statutory powers to investigate breaches of planning control and the conditions attached to planning consents, and to take formal action where a satisfactory outcome cannot be achieved by negotiation.

However, enforcement is a discretionary power which means that, even where there is a breach of planning control, we have to consider if it is in the public interest to take enforcement action. We are not required to take any particular action on a specific breach of planning control, and can decide that no action is necessary.

Full information on the use of enforcement powers can be found in the Scottish Government: Planning Circular 10/2009.

Planning enforcement also covers the physical display of advertisements such as billboards and advertisement hoardings, although slightly different procedures apply. These are set out in a separate section at the end of this webpage.

The actual content of an advertisement is not covered by planning control. Any complaints about this should be made to the Advertising Standards Authority.

By publishing our standards and targets, we aim to improve our enforcement service and make it responsive to the needs of our customers.

We will monitor the contents of this Charter to ensure that standards and targets are being met.

Possible breaches of planning control can include:

• work being carried out without planning permission or consent
• an unauthorised change of use
• failure to comply with conditions attached to a permission or consent
• departures from approved plans or consent

How to report a breach of planning control

Members of the public have a vital role in reporting breaches of control.

Any concerns should be raised with the Council. You can make preliminary enquiries by telephone, but you should also follow this up in writing or by emailing Planning.Enforcement@east-ayrshire.gov.uk.

Where a complaint is made in writing or by email it will be acknowledged and investigated.

Please note: Only parties who make formal complaints will be kept informed of any progress on cases.

The following information is essential when reporting a suspected breach:

• the address of the property concerned
• details of the suspected breach of planning control, with times and dates if relevant
• your name, telephone number and address
• an email address if available or if the complaint is submitted electronically
• information on how the breach affects you

To protect the identity of any complainant where enforcement action is a possibility, then details of the complainant will be held in confidence and will not be circulated by the Planning Service to any third party including the person(s) or company(ies) that is the subject of the complaint, unless the complainant authorises the Planning service to release their details.

However while we will do its best to honour requests for confidentiality, it is subject to the requirements of the Freedom of Information (Scotland) Act 2002 and Environmental Information (Scotland) Regulations 2004 which may, in certain circumstances require that the information relating to the complaint(s) is/are released. Requests for total confidentiality may in certain circumstances limit the ability of the authority to take formal action and cannot be guaranteed if the case leads to court proceedings.

It should also be noted that while we will protect the identity of a complaint, the specific nature of the complaint and the potential planning breach may by their nature give a clear indication of the source of the complaint to the person being investigated, such as the erection of a fence on a common boundary.

Monitoring planning consents

Members of the public also have an important role in monitoring the conditions that are placed on certain planning consents.

Details of the conditions are included within the decision notice attached to the permission. Monitoring is undertaken by our development management section as appropriate. However, there are a large number of permissions granted each year and it is not practical, nor is it expected, that councils monitor all conditions at all times.

Your involvement is therefore invaluable in providing information where it is believed that conditions attached to the consent are not being complied with or have not been discharged in a satisfactory way. Breaches of conditions are investigated in the same way as breaches of planning control.

Information received by our planning enforcement section is checked to ensure that it involves a possible breach of control and includes all the detail required for a possible investigation. After preliminary checking and compliance with the requirements for investigation, the complaint will be registered. Once registered, a written or email acknowledgement will be sent to the person who made the complaint.

Some complaints, such as neighbour disputes over boundaries, relate to matters over which the governance service has no remit or control over and cannot be pursued.

If preliminary checking of a complaint suggests a possible breach of planning control, the complaint will be registered. Once registered, a written or email acknowledgement will be sent to the person who made the complaint within five working days. The acknowledgement will include a reference number and contact details for the investigating officer.

A priority system is used for investigating complaints based on matters such as the effect of the breach and the significance of the site. Priority will be given to significant breaches of planning control including:

• unauthorised felling of trees and matters affecting trees protected by Tree Protection Orders
• irreversible damage to listed buildings
• breaches of condition for major development
• significant detrimental impact on amenity

An investigation begins with an enforcement officer checking the planning site history and visiting the site.

Members of the public who provide information will receive a formal response on conclusion of our investigations.

The length of time required to resolve a case or take action can be affected by a number of factors. Progress can be delayed for the gathering of further evidence, to allow negotiations to take place or for formal procedures to be concluded. Similarly, an application to regularise the breach of control or an appeal against a decision of the planning authority can also delay resolution of the case.

We recognise that delays can be a source of considerable frustration to those submitting information, particularly if they consider their amenity is affected. In recognition of this you may wish to contact the investigating officer for a more regular update.

In some cases action may not be appropriate, even though planning controls have been breached.

As stated previously, the purpose of planning enforcement is to resolve problems, not punish mistakes. The planning authority has to consider each case on its merits and decide on the best solution.

Where we consider that a planning permission should be obtained, we may serve a Notice Requiring Application for Planning Permission for development already carried out.

Not every complaint may lead to the taking of formal enforcement action. When required, however, this begins with the gathering of information and then the service of a formal notice on those involved in the development. Notices include the following information:

• a description of the breach of control that has taken place
• the steps that should be taken to remedy the breach
• the timescale for taking these steps
• the consequences of failure to comply with the notice
• where appropriate, any rights of appeal the recipient has and how to lodge an appeal

Appeals against enforcement notices are considered by Scottish Government and dealt with, in most cases, by Reporters from the Planning and Environmental Appeals Division (DPEA). Anyone who has submitted information on a breach of planning control is advised of any appeal that may subsequently be made against the Enforcement Notice.

There is no right of appeal against a Stop Notice, Breach of Condition Notice or a Notice Requiring Application for Planning Permission for Development Already Carried Out.

Where a planning breach cannot be resolved and action is justified, a formal notice will be served. This will be either an Enforcement Notice, Stop Notice, a Breach of Condition Notice or a Notice requiring the submission of an application for planning permission.

We will write to the recipient of the notice to explain what is required, the timescales involved and the available options to resolve the issue.

Failure to comply with a notice may result in the planning authority taking further action. This can include a range of possible options including:

• carrying out work and charging the person for the costs involved
• referring the case to the Procurator Fiscal for possible prosecution
• seeking a Court interdict to stop or prevent a breach of planning controls
• serving of a fixed penalty notice

For more detail, see the ‘Enforcement Powers’ section at the end of the Charter.

Details of notice requiring the submission of an application for planning permission, enforcement notices, breach of condition notices, temporary stop notices and stop notices are entered into an Enforcement Register (PDF 1.95 MB).

The Council has powers to enter land to:

• establish if there has been a breach of planning control
• check if there has been compliance with a formal notice
• check if a breach has been satisfactorily resolved

This power applies to any land and may involve officers entering land adjacent to the site of the breach.

Enforcement action has to be taken within strict time limits:

1. A four year limit – this applies to “unauthorised operational development” (the carrying out of building, engineering, mining or other operations in, on, over or under land) and change of use of a building to a single dwellinghouse. After four years following the breach of planning control, the development becomes lawful, and no enforcement action can be taken.
2. A ten year limit – this applies to all other development including change of use (other than to a single dwellinghouse) either without planning permission or in breach of a condition or limitation to which a planning permission is subject. After ten years, the development becomes lawful if no enforcement action has begun.

Compliance monitoring for major developments

In relation to major developments, as defined by The Town and Country Planning (Hierarchy of Developments) (Scotland) Regulations 2009, and other relevant large scale developments, for example windfarms, opencast coaling, quarries, landfill and housing developments, the planning authority will carry out compliance monitoring inspections, as deemed appropriate by the Chief Planning Officer, throughout the life of the construction process or temporary consent.

In some instances, where a specialist knowledge base is required, the planning authority will engage independent consultants to carry out inspections of the major development. An example of such an independent consultant would be the Mining Engineers currently being used to supplement the regular inspections and monitoring of the open cast mines. The frequency and detail of these inspections will be dependent on the type of project and the particular issue requiring the specialist knowledge base.

Where the supervision of a major development project would benefit from a specialist independent consultant the planning authority would expect the development company to reimburse the planning authority for any fees incurred in the engagement of the independent consultant by the planning authority. This would normally be governed by a separate legal agreement between the planning authority and the developer concluded prior to the commencement of the works.

Biannual reports

The planning authority shall report on a six monthly basis (or other agreed timescale) to the Planning Committee the progress of each major development within East Ayrshire for the following sectors:

• energy generating stations
• open cast coal
• landfill
• quarries

The report shall detail:

• the compliance monitoring inspections to the sites during the previous six months
• the occurrences of Technical Working Group and Community Liaison Groups during the previous six months
• a summary of the current status of the development, the status and duration of any restoration guarantee for the development
• raise any other relevant issues pertinent to the compliance monitoring of the sites

This report also details all single and double turbine approvals along with their status and any restoration bond in place.

The planning enforcement powers available to your local Council are set out in:

• Part VI of the Town and Country Planning (Scotland) Act 1997 as amended
• Chapter IV of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997
• Part VII of the Town and Country Planning (Control of Advertisements) (Scotland) Regulations 1984
• Sections 22 to 30 of the High Hedges (Scotland) Act 2013

The above documents are available from the Legislation: Scotland website.

Government policy on planning enforcement is set out in the Scottish Government: Planning Circular 10/2009.

Application for planning permission for development already carried out notice

This notice is to encourage the submission of a retrospective planning application, which would then allow the planning authority to consider the grant of planning permission subject to any conditions or limitations that would make the development acceptable in planning terms.

It should be noted that the retrospective planning application would be determined in the same manner as a planning application submitted by the developer in the normal manner and would require to be accompanied by the relevant fee.

Where a planning application is not submitted to the planning authority by the date specified, the planning authority should consider further enforcement action. There is no right of appeal.

Breach of condition notice

This is used to enforce the conditions applied to any planning permission. It is effective from the date it is served.

It may be used as an alternative to an enforcement notice, and is served on any person carrying out, or who has carried out, the development or any person having control of the land. There is no right of appeal.

Contravening a breach of condition notice can result in the Council deciding to prosecute, with a fine of up to Level 5 of the Standard Scale.

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 as below, and advertisements. An enforcement notice will specify a time period to take effect (a minimum of 28 days –but see the section below on advertisements) the steps that must be taken to remedy the breach and the time for this to be completed.

There is a right of appeal and, in the event of an appeal, the terms of the notice are suspended until a decision is reached on that appeal, or the appeal is withdrawn.

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 on summary conviction, and on conviction on indictment to a fine. Failure to comply may also result in the Council taking Direct Action to correct the breach, see other powers below.

Listed building enforcement notice

This must be served on the current owner, lessee, 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. Breaches of listed building control are a serious matter. There is the right of appeal to Scottish Ministers against the notice.

It is a criminal offence to undertake unauthorised works to demolish, significantly alter, or extend a listed building. In certain circumstances, this can lead to a fine of up to £20,000 on summary conviction, and on conviction on indictment to a fine for failure to comply with the terms of any notice served.

Any acts “causing or likely to result in damage to a listed building” may also constitute an offence and be liable on summary conviction not exceeding level three on the Standard Scale.

Temporary stop notice

The service of this notice takes effect immediately it is issued and, unlike a stop notice, does not require the issue of an enforcement notice.

Typically, a temporary stop notice would be used to stop an activity that would, in the planning authority’s view, cause damage to the environment and/or local amenity. The temporary stop notice might not prohibit the activity over the entire site; for example, it might instead restrict it to certain areas or times. A temporary stop notice requires the immediate cessation of an activity from the moment it is displayed on a site.

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 which can lead to a fine of up to £50,000.

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, we may face claims for compensation.

The use of stop notices therefore needs to be carefully assessed by us.

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 up to Level 5 on the standard scale being imposed by 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 not exceeding Level 3 on the standard scale being imposed by the Courts.

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

This allows planning authorities to serve a notice on the owner, lessee and occupier of land which is adversely affecting the amenity of the area. This is also known as a ‘Wasteland Notice’ and sets out the action that needs to be taken to resolve the problem within a specified period.

Fixed penalty notice

This notice is issued where an enforcement notice or breach of condition notice is not complied with.

Where a planning authority believes that a person is in breach of an enforcement notice or breach of condition notice, it may issue that person with a fixed penalty notice. They may do so providing the notice is served within the six months period immediately following the compliance period stated in the enforcement notice; and that no prosecution proceedings have been started in respect of the breach.

Its purpose is to offer a person the opportunity of discharging any liability for prosecution in respect of a breach of an enforcement notice or breach of condition notice, by paying the planning authority a penalty of an amount specified in the notice within 30 days.

The 30 day period starts the day the notice is served, but if payment is made within the first 15 days then the amount payable is reduced by 25%. The penalty for non-compliance with an enforcement notice is £2,000 and for non-compliance with a Breach of Conditions Notice the penalty is £300.

Any penalty paid accrues to the planning authority. No court proceedings can be initiated during the 30 day payment period. If however the penalty is not paid within the 30 day period then it would be open to the planning authority to consider prosecution.

There is no right of appeal against a Fixed Penalty Notice.

High hedge notice

Under the terms of the High Hedges (Scotland) Act 2013 there are certain circumstances in which local authorities are able to control the height of hedges by assessing their effect on neighbouring properties.

Additional guidance is available from High Hedges (Scotland) Act 2013: Revised guidance 2019.

Interdict and interim interdict

An interdict is granted 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 a council 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

Failure to comply with the terms of an enforcement notice within the time specified can result in the Council carrying out the specified work.

We may recover any costs it incurs from the landowner.

Planning permission is required for most development that takes place in Scotland. Sometimes, however, developers or householders undertake work without planning permission or fail to keep to the permission they have been given. Local councils have powers to act in such cases.

The Council will investigate breaches of planning control. These can include:

• work being carried out without planning permission
• an unauthorised change of use
• not following conditions imposed by a planning consent
• not following plans approved by a planning consent

The public can play a vital role in reporting such incidents to their Council. This will need to include:

• the address of the property concerned
• details of the suspected breach of planning control, (with times and dates if relevant)
• contact details for the person providing the information
• whether that person wishes the matter to be treated confidentially.Councils will do their best to honour such requests but anonymity cannot be guaranteed where statutory enforcement action is undertaken given the terms of the Freedom of Information (Scotland) Act 2002 and Environmental Information (Scotland) Regulations 2004

The purpose of planning enforcement is to resolve the problem rather than to punish the mistake. Action can involve negotiating a solution, asking for a retrospective planning application to be made, or more formal action such as the issue of an enforcement notice or a breach of condition notice.

Formal action may require the serving of an enforcement notice on the relevant people, spelling out the action they are required to take. They can challenge this notice, through an appeal to Scottish Ministers. If so, enforcement action is suspended until a decision is issued. Failure to comply with an enforcement notice can result in prosecution.

In some cases, the Council is time-barred from taking action. Generally, work carried out more than four years ago or a change of use that took place more than 10 years ago is considered lawful and immune from action.

It is not always possible to anticipate how a particular case will develop, nor how long it will take. We will try to keep people informed of progress.

The display of advertisements is covered by the Town and Country Planning (Control of Advertisements) (Scotland) Regulations 1984.

Many advertisements are displayed with what is called ‘deemed consent’ which means they do not require planning permission if they meet the criteria and conditions set out in the regulations. One of these conditions is that the landowner has given permission for the advertisement to be displayed on their land.

Displaying an advertisement in contravention of the regulations is an offence and, if convicted in court, an offender can be fined. The court can impose further fines for each day the breach of the regulations continues.

The Council has the power to serve an enforcement notice. This specifies a time period (normally 28 days) for compliance with the notice. However, this period can be reduced to seven days if we believe there is an urgent need for the advertisement to be removed or altered in the interests of public safety, or if the advertisement can be removed without the removal or substantial modification of any structure or the carrying out of any building or similar operations on land.

An enforcement notice can also require that a particular piece of land should not be used to display advertisements. This remains in force even if the original advertisement is removed. Any subsequent advertising on this site would amount to a breach of the notice.

The Council also has powers under the terms of Section 187 of the Town and Country Planning (Scotland) Act 1997 as amended to remove or destroy placards and posters that do not have planning permission or deemed consent. If the person who put up the poster can be identified, they have to be given at least two days notice that the Council intends to take the poster down. If they cannot be readily identified, then the advert can be removed immediately.

Council officials can enter unoccupied land, if necessary, to remove an advertisement. However they have no powers to remove advertisements displayed within a building to which there is no public access.

We operate a two stage complaints procedure and in the first instance a complaint can be made by phone, in writing, email or via our online contact us form.

We hope the public will be satisfied with the planning enforcement service, however if you have any suggestions, concerns or difficulties, we want to hear from you. We are committed to improving our service and dealing promptly with any failures.

Through our formal complaints procedures we will consider all complaints made about the way an enforcement enquiry was dealt with. Some people may disagree with the outcome of an investigation but, of itself, that is not grounds for complaint. As noted previously there is a separate appeals’ procedure for a recipient of an enforcement notice.

We aim to resolve complaints quickly and close to where we provided the service, in line with our corporate complaints procedure.

Useful contacts:

• Environmental Health Service
• Ayrshire Roads Alliance
• Trading Standards Service
• Scottish Government: Planning Directorate
• Directorate for Planning and Environmental Appeals