Planning Enforcement

Planning Northern Ireland enforcement. Any carrying out of development without planning permission where required or failure to comply with the terms and conditions of a planning permission is a breach of planning control. Enforcement is effected by an enforcement notice or a breach of condition notice.

There is generally a five-year time limit for taking enforcement action. In the case of works, it runs from the date on which the operations were completed. In other cases, it runs from the date of the breach. If enforcement action has been taken within five years, further enforcement action may be taken after that time.

Where there appears to be a breach of planning control, the council may serve a planning contravention notice, requiring the person on whom it is served to give information best supplied in the notice. This includes details of works, operations, use. It may require details of other persons who have used the land.

A person may make representations or may offer to apply for planning permission or refrain from activities or undertake corrective work.

If a person does not comply with a planning contravention notice within 21 days, he is guilty of an offence. Each new day of contravention is a further offence which may be prosecuted. Any false or misleading statement in response to a notice constitutes an offence.

The council may issue a temporary stop notice. If there is a breach of planning control in relation to land in its district and it is expedient that the activity is immediately stopped, the notice will specify the activity, prohibit its carrying out, and set out reasons. It may be served on the occupier, owner, or person carrying out the activity. It has the effect for 28 days or such a shorter period as is specified.

A temporary notice may not be used in relation to a person’s permanent residence or other activities specified by regulation. It may not prohibit an activity that has been carried out for more than five years. (Use of residence or such)

It is an offence to contravene a temporary stop notice; each continuation is an offense.

The council may issue an enforcement notice where it appears there’s been a breach of planning control in its district and that it is expedient to issue the notice having regard to the local development plan and other material considerations. The enforcement notice is served on the owner and occupier of the land and any other person materially affected. The department may serve notices in accordance with the same criteria.

The enforcement notice must state the breach of contract and the type of breach involved. It must specify the steps which the council or department requires to be taken or the activities which are required to cease.

The enforcement notice may require alteration or removal of building works, carrying out of building works, limitation of activities.

An enforcement notice requiring demolition of a building may require construction of a replacement building complying with planning controls. The notice must specify the period in which the required steps are to be taken.

The council or department may vary or withdraw the enforcement notice.

A person affected by an enforcement notice prior to the date on which it is to take effect may appeal the notice to the planning appeals commission. An appeal may be granted on the basis that planning permission not be given or a condition not be discharged, but the stated matters have not occurred, that they do not constitute a breach of planning permission, and that no enforcement action can be taken at the relevant date. The planning appeals commission may quash, uphold, or vary the terms of the enforcement notice. It may also correct defective enforcement notices.

Under termination of appeal, the planning appeal commission may grant planning permission in relation to the matters in the enforcement notice, discharge conditions, determine whether the existing use or works are lawful.

Where the steps required by an enforcement notice have not been taken, the council or the department may enter the land, undertake the works, and will recover the costs as a debt due.

Where the owner or occupier of land incurs expenses in complying with an enforcement notice, he may recover them from the person who committed the planning breach.

The expenses recovered by both the council are deemed to charge on the property and are enforceable in the same manner as a mortgage.

Failure to comply with an enforcement notice is an offence. It is a defence if the person shows they did everything they could be expected to do to secure compliance. The offence may be charged by reference to each day on which it continues. The offence is subject to a fine on summary conviction of up to 100,000 euros/pounds and an unlimited fine on indictment. The court will have regard to the financial benefits which accrue or may accrue to the person in consequence of the offence. Where planning permission is obtained after the service of a notice, the notice ceases to have effect insofar as inconsistent with planning permission.

An enforcement notice is to take effect against subsequent development or further new breaches.

Where a council considers it expedient to stop an activity before the period for compliance with an enforcement notice, it may serve a stop notice referring to the enforcement notice and activity. This may not apply to the continued use of land as that of a private residence of the person concerned.

If a stop notice must be served within five years, the stop notice ceases if the enforcement notice is quashed or withdrawn, becomes effective, or there is a cessation of activities under the enforcement notice. Failure to comply with a stop notice is an offence, carrying the same penalties as an enforcement notice. The department may serve a stop notice, but it must consult the council.

A council may serve a breach of condition notice where a person is carrying out development requiring compliance with conditions specified in the notice. The breach of condition notice must specify the steps the council considers must be taken to secure compliance with the conditions specified.

The period for compliance with the notice is 28 days or such an extended period as may be allowed. Breach of the notice constitutes an offence in the same manner as other offences, it may be charged by reference to which they have continued the breach.

Fixed penalties may be imposed by the council if it has reason to believe an offence or breach of enforcement notice has occurred. The person on whom the notice is served may be given the opportunity of discharging the liability for the conviction by payment of a fixed penalty. The person may not be convicted of the offense if he pays a fixed penalty within the 28-day prescribed period. The fixed penalty amount and such amount as may be prescribed. If payment is made within 14 days, the amount payable is reduced by 25 percent. There are similar provisions for fixed penalty notices in respect of breach of commission notices.

Fixed penalties collected may be used by the council for its functions under the legislation or for such other functions as may be specified by the department.

Where a council considers it necessary or expedient, it may apply for an injunction in respect of the actual or apprehended breach of planning control or contravention of other provisions of planning legislation. The court may grant such injunction as it considers appropriate. Injunctions may be granted against persons unknown. The application may be made to the high court or the county court.

An entirely similar system of enforcement notices exists in respect of breaches of listed building restrictions. There is a distinct listed building enforcement notice which may be issued by the council or the department. In the same manner as the planning enforcement notice, it may be appealed to the planning appeals commission.

Grounds for appeal include that the works were urgently necessary in the interest of health or safety or the preservation of the building, and that the works constitute the minimum measures necessary. An application may also be made for listed buildings consent which may be granted by the planning appeals commission. Generally, conditions attached to the listed building consent may be varied by the commission.

Where the council is of the view that works are urgently necessary for the preservation of a listed building or building in respect of which a direction has been given by the department, the council may execute the necessary works. Generally, the owner must be given seven days’ notice of the intention to undertake works.

The expenses may be recovered from the owner. The owner may resist payment on the basis that works however necessary have continued for an unreasonable length of time or the amount specified as unreasonable and its recovery would cause hardships.

There are parallel systems of enforcement in respect of hazardous substances.

A council may serve a notice requiring compliance with a Tree Preservation Order. It must be served within five years. An appeal may be taken to the planning appeals commission against the notice on grounds including that the requirements are unreasonable, that the planting is not in the interest of or contrary to good forestry process, that planting is unsuited, that it should be dispensed with.

From the fault of compliance, the council may enter the land, undertake necessary works, including planting trees and recover the costs. The cost of expenses may be recovered from the owner.

A person who continues to breach planning permission after the expiry of periods allowed for compliance or in contravention of condition is guilty of an offence.

If a person wishes to ascertain whether the existing use of building is unlawful, whether development is lawfully — works are lawfully carried out or whether any of the matter constitutes a failure to comply with a condition or limitation to subject which planning permission has been granted, a person may apply to the councils specifying, seeking a certificate. If the council is satisfied with the information furnished, it must issue a certificate. If it is not satisfied as to the lawfulness, it must refuse a certificate. The lawfulness of use, operations, or other matters for which the certificate is issued is conclusively presumed.

It is an offence to knowingly or recklessly give false or misleading information or to withhold information in relation to a certificate of lawful use.

Where an application is used or is not given within the relevant period, the applicant may appeal to the planning appeals commission.

The provisions in relation to the control of advertising development are broadly similar to the other forms of planning consent.

Persons authorized by the council have rights to enter land without warranty to investigate breaches of planning control or exercise functions generally. Persons duly authorized may enter land to determine whether an enforcement notice, stop notice, listed building enforcement notice should be issued in relation to the land if there are reasonable grounds for that purpose.

A lay magistrate may issue a warrant authorizing entry if there are reasonable grounds for entering the land and admission has been refused or refusals reasonably apprehended. Refusal is deemed if no replies are received to the requested admission within a reasonable period.

It is an offence to willfully obstruct a person exercising a right of entry under the