Town and Country Planning (Scotland) Act 1969

Enforcement notices

15 New provision as to enforcement notices

(1) Where it appears to the local planning authority that there has been a breach of planning control after the end of 1964, then, subject to any directions given by the Secretary of State and to the following provisions of this section, the authority, if they consider it expedient to do so having regard to the provisions of the development plan and to any other material considerations, may serve a notice under this section (in this Act and the Act of 1947 referred to as an " enforcement notice ") requiring the breach to be remedied.

(2) There is a breach of planning control if development has been carried out, whether before or after the commencement of this Part of this Act, without the grant of planning permission required in that behalf in accordance with Part II of the Act of 1947 or if any conditions or limitations subject to which planning permission was granted have not been complied with.

(3) Where an enforcement notice relates to a breach of planning control consisting in—

(a) the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land ; or

(b) the failure to comply with any condition or limitation which relates to the carrying out of such operations and subject to which planning permission was granted for the development of that land ; or

(c) the making without planning permission of a change of use of any building to use as a single dwelling-house,

it may be served only within the period of four years from the date of the breach.

(4) If any dispute arises under the last foregoing subsection as to the date on which the breach of planning control occurred, the onus of proof as to that date shall rest on the person claiming the benefit of that subsection.

(5) An enforcement notice shall be served on the owner, lessee and occupier of the land to which it relates and on any other person having an interest in that land, being an interest which in the opinion of the authority is materially affected by the notice.

(6) An enforcement notice shall specify—

(a) the matters alleged to constitute a breach of planning control;

(b) the steps required by the authority to be taken in order to remedy the breach, that is to say steps for the purpose of restoring the land to its condition before the development took place or (according to the particular circumstances of the breach) of securing compliance with the conditions or limitations subject to which planning permission was granted; and

(c) the period for compliance with the notice, that is to say the period (beginning with the date when the notice takes effect) within which those steps are required to be taken.

(7) The steps which may be required by an enforcement notice to be taken include the demolition or alteration of any buildings or works, the discontinuance of any use of land, or the carrying out on land of any building or other operations.

(8) Subject to section 16 below, an enforcement notice shall take effect at the end of such period, not less than twenty-eight days after the service of the notice, as may be specified in the notice.

(9) The local planning authority may withdraw an enforcement notice (without prejudice to their power to serve another) at any time before it takes effect; and, if they do so, they shall forthwith give notice of the withdrawal to every person who was served with the notice.

16 Appeal against enforcement notice

(1) A person on whom an enforcement notice is served, or any other person having an interest in the land, may, at any time within the period specified in the notice as the period at the end of which it is to take effect, appeal to the Secretary of State against the notice on any of the following grounds:—

(a) that planning permission ought to be granted for the development to which the notice relates or, as the case may be, that a condition or limitation alleged in the enforcement notice not to have been complied with ought to be discharged ;

(b) that the matters alleged in the notice do not constitute a breach of planning control;

(c) in the case of a notice which, by virtue of section 15(3) above, may be served only within the period of four years from the date of the breach of planning control to which the notice relates, that that period has elapsed at the date of service ;

(d) in the case of a notice not falling within paragraph (c) above, that the breach of planning control alleged by the notice occurred before the beginning of 1965;

(e) that the enforcement notice was not served as required by section 15(5) of this Act;

(f) that the steps required by the notice to be taken exceed what is necessary to remedy any breach of planning control;

(g) that the specified period for compliance with the notice falls short of what should reasonably be allowed.

(2) An appeal under this section shall be made by notice in writing to the Secretary of State, which shall indicate the grounds of the appeal and state the facts on which it is based ; and on any such appeal the Secretary of State shall, if either the appellant or the local planning authority so desire, afford to each of them an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for the purpose.

(3) Where an appeal is brought under this section, the enforcement notice shall be of no effect pending the final determination or the withdrawal of the appeal.

(4) On an appeal under this section—

(a) the Secretary of State may correct any informality, defect or error in the enforcement notice if he is satisfied that the informality, defect or error is not material;

(b) in a case where it would otherwise be a ground for determining the appeal in favour of the appellant that a person required by section 15(5) of this Act to be served with the notice was not served, the Secretary of State may disregard that fact if neither the appellant nor that person has been substantially prejudiced by the failure to serve him.

(5) On the determination of an appeal under this section, the Secretary of State shall give directions for giving effect to his determination including, where appropriate, directions for quashing the enforcement notice or for varying the terms of the notice in favour of the appellant; and the Secretary of State may—

(a) grant planning permission for the development to which the enforcement notice relates or, as the case may be, discharge any condition or limitation subject to which planning permission for that development was granted;

(b) determine any purpose for which the land may, in the circumstances obtaining at the time of the determination, be lawfully used, having regard to any past use thereof and to any planning permission relating to the land.

(6) In considering whether to grant planning permission under subsection (5) above, the Secretary of State shall have regard to the provisions of the development plan, so far as material to the subject-matter of the enforcement notice, and to any other material considerations, and any planning permission granted by him under that subsection may—

(a) include permission to retain or complete any buildings or works on the land, or to do so without complying with some condition attached to a previous planning permission;

(b) be granted subject to such conditions as the Secretary of State thinks fit;

and where under that subsection he discharges a condition or limitation, he may substitute for it any other condition or limitation.

(7) Where an appeal against an enforcement notice is brought under this section, the appellant shall be deemed to have made an application for planning permission for the development to which the notice relates and, in relation to any exercise by the Secretary of State of his powers under subsection (5) above, the following provisions shall have effect:—

(a) any planning permission granted thereunder shall be treated as granted on the said application;

(b) in relation to a grant of planning permission or a determination under that subsection, the Secretary of State's decision shall be final; and

(c) for the purposes of section 12(5) of the Act of 1947 (local planning authority's register of planning applications) the decision shall be treated as having been given by the Secretary of State in dealing with an application for planning permission made to the local planning authority.

(8) The validity of an enforcement notice shall not, except by way of an appeal under this section, be questioned in any proceedings whatsoever on any of the grounds specified in paragraphs (b) to (e) of subsection (1) above.

(9) Subsection (8) above shall not apply to proceedings brought under section 22(3) of the Act of 1947 against a person who—

(a) has held an interest in the land since before the enforcement notice was served under section 15 above ; and

(b) did not have the enforcement notice served on him there under ; and

(c) satisfies the court that—

(i) he did not know and could not reasonably have been expected to know that the enforcement notice had been served ; and

(ii) his interests have been substantially prejudiced by the failure to serve him.

17 Enforcement notice to have effect against subsequent development

(1) Compliance with an enforcement notice, whether in respect of—

(a) the demolition or alteration of any buildings or works, or

(b) the discontinuance of any use of land,

or in respect of any other requirements contained in the enforcement notice, shall not discharge the enforcement notice.

(2) Without prejudice to the preceding subsection, any provision of an enforcement notice requiring a use of land to be discontinued shall operate as a requirement that it shall be discontinued permanently, to the extent that it is in contravention of Part II of the Act of 1947; and accordingly the resumption of that use at any time after it has been discontinued in compliance with the enforcement notice shall to that extent be in contravention of the enforcement notice.

(3) Without prejudice to subsection (1) of this section, if any development is carried out on land by way of reinstating or restoring buildings or works which have been demolished or altered in compliance with an enforcement notice, the notice shall, notwithstanding that its terms are not apt for the purpose be deemed to apply in relation to the buildings or works as reinstated or restored as it applied in relation to the buildings or works before they were demolished or altered.

(4) A person who, without the grant of planning permission in that behalf, carries out any development on land by way of reinstating or restoring buildings or works which have been demolished or altered in compliance with an enforcement notice shall be guilty of an offence, and shall be liable on summary conviction to a fine not exceeding £100.