There are occasional examples of high profile planning enforcement cases: my recent blog discussed the demolition of £1 million luxury mansions, as well as shark art installations. But how often is enforcement action taken?
Background
The importance of enforcement is highlighted in the Scottish Government Circular 10/2009:
"The integrity of the development management process depends upon the
planning authority's readiness to take effective enforcement action when necessary.
Public respect for the development management system is undermined if
unauthorised development, which is unacceptable on its planning merits, is allowed
to proceed without any apparent attempt by the planning authority to intervene
before serious harm to amenity results from the breach."
The Scottish Government also note that planning authorities have a general discretion to take enforcement action.
Breach of Planning Control
Enforcement addresses two situations:
- Not obtaining a necessary planning permission
- Non-compliance with the terms of a planning permission
Enforcement by planning authorities
The annual performance statistics for Scotland show the following trends:
Low number of enforcement cases - approximately 5,500 per year, which is roughly 150 per planning authority or about 3 per week per authority. The statistics are not sub-divided by planning authority, but it seems likely that most of the cases are located within a few authority areas. For example, the City of Edinburgh Council continue to be active in relation to short stay commercial visitor accommodation.
Few cases result in notices being served - only around 10%.
Notices are rarely appealed - only 10-20% (not all types of notices have a right of appeal). Appeal rates have been rising since 2017/18, probably because of short stay commercial visitor accommodation cases. However, the number of appeals in the last year plummeted by two-thirds, presumably as a result of the pandemic and changed economic conditions.
Prosecution is very rare - only 2 or 3 cases per year are reported to the Procurator Fiscal to be considered for prosecution; and in the last 3 years only 2 cases have resulted in prosecution (there's no mention of whether these prosecutions were successful).
(Planning authority statistics - 2020/21; 2019/ 2020; 2018-2019; DPEA statistics - 2020/21)
Given the complexities of planning law, it is not surprising that very few cases result in notices being served. Investigation might show there is no breach of planning control, or a retrospective planning application or certificate of lawfulness might be granted. Even if there is a breach, the planning authority might exercise its discretion not to take further action.
The statistics do not record the success level for notices or for appeals. Some notices fall after a successful appeal; sometimes a notice will be withdrawn. However, it seems unlikely that the 2 or 3 per year reported to the PF are the only notices which have not been complied with.
As 80-90% of notices are not appealed, if most of those are complied with, planning enforcement seems to have a good success rate.
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