68.—(1) The Department may issue a notice (in this Order referred to as an “enforcement notice”) where it appears to it—
(a)that there has been a breach of planning control; and
(b)that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations.
(2) A copy of an enforcement notice shall be served—
(a)on the owner and on the occupier of the land to which it relates; and
(b)on any other person having an estate in the land, being an estate which, in the opinion of the Department, is materially affected by the notice.
(3) The service of the notice shall take place—
(a)not more than 28 days after its date of issue; and
(b)not less than 28 days before the date specified in it as the date on which it is to take effect.]
68A.—(1) An enforcement notice shall state—
(a)the matters which appear to the Department to constitute the breach of planning control; and
(b)the sub-paragraph of Article 67A(1) within which, in the opinion of the Department, the breach falls.
(2) A notice complies with paragraph (1)(a) if it enables any person on whom a copy of it is served to know what those matters are.
(3) An enforcement notice shall specify the steps which the Department requires to be taken, or the activities which the Department requires to cease, in order to achieve, wholly or partly, any of the following purposes.
(4) Those purposes are—
(a)remedying the breach by making any development comply with the terms (including conditions and limitations) of any planning permission which has been granted in respect of the land, by discontinuing any use of the land or by restoring the land to its condition before the breach took place; or
(b)remedying any injury to amenity which has been caused by the breach.
(5) An enforcement notice may, for example, require—
(a)the alteration or removal of any buildings or works;
(b)the carrying out of any building or other operations;
(c)any activity on the land not to be carried on except to the extent specified in the notice; or
(d)the contour of a deposit of refuse or waste materials on land to be modified by altering the gradient or gradients of its sides.
(6) Where an enforcement notice is issued in respect of a breach of planning control consisting of demolition of a building, the notice may require the construction of a building (in this Article referred to as a “replacement building”) which, subject to paragraph (7), is as similar as possible to the demolished building.
(7) A replacement building—
(a)must comply with any requirement imposed by any statutory provision applicable to the construction of buildings;
(b)may differ from the demolished building in any respect which, if the demolished building had been altered in that respect, would not have constituted a breach of planning control;
(c)must comply with any regulations made for the purposes of this paragraph (including regulations modifying sub-paragraphs (a) and (b)).
(8) An enforcement notice shall specify the date on which it is to take effect and, subject to Article 69(8), shall take effect on that date.
(9) An enforcement notice shall specify the period at the end of which any steps are required to have been taken or any activities are required to have ceased and may specify different periods for different steps or activities; and, where different periods apply to different steps or activities, references in this Part to the period for compliance with an enforcement notice, in relation to any step or activity, are to the period at the end of which the step is required to have been taken or the activity is required to have ceased.
(10) An enforcement notice shall specify such additional matters as may be prescribed, and regulations may require every copy of an enforcement notice served under Article 68 to be accompanied by an explanatory note giving prescribed information as to the right of appeal under Article 69.
(11) Where—
(a)an enforcement notice in respect of any breach of planning control could have required any buildings or works to be removed or any activity to cease, but does not do so; and
(b)all the requirements of the notice have been complied with,
then, so far as the notice did not so require, planning permission shall be treated as having been granted by virtue of Article 28A in respect of development consisting of the construction of the buildings or works or, as the case may be, the carrying out of the activities.
(12) Where—
(a)an enforcement notice requires the construction of a replacement building; and
(b)all the requirements of the notice with respect to that construction have been complied with,
planning permission shall be treated as having been granted by virtue of Article 28A in respect of development consisting of that construction.
68B.—(1) The Department may—
(a)withdraw an enforcement notice issued by it; or
(b)waive or relax any requirement of such a notice and, in particular, may extend any period specified in accordance with Article 68A(9).
(2) The powers conferred by paragraph (1) may be exercised whether or not the notice has taken effect.
(3) The Department shall, immediately after exercising the powers conferred by paragraph (1), give notice of the exercise to every person who has been served with a copy of the enforcement notice or would, if the notice were re-issued, be served with a copy of it.
(4) The withdrawal of an enforcement notice does not affect the power of the Department to issue a further enforcement notice.
69.—(1) A person having an estate in the land to which an enforcement notice relates or a person to whom paragraph (2) applies may, at any time before the date specified in the notice as the date on which it is to take effect, appeal to the planning appeals commission against the notice, whether or not a copy of it has been served on him.
(2) This paragraph applies to a person who—
(a)on the date on which the enforcement notice is issued occupies the land to which it relates by virtue of a licenceF2. . . ; and
(b)continues to occupy the land as aforesaid when the appeal is brought.
[F2(3) An appeal may be brought on any of the following grounds—
(a)that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;
(b)that those matters have not occurred;
(c)that those matters (if they occurred) do not constitute a breach of planning control;
(d)that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters;
(e)that copies of the enforcement notice were not served as required by Article 68;
(f)that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;
(g)that any period specified in the notice in accordance with Article 68A(9) falls short of what should reasonably be allowed.
(4) An appeal under this Article shall be made by serving written notice of the appeal on the planning appeals commission before the date specified in the enforcement notice as the date on which it is to take effect and such notice shall indicate the grounds of the appeal and state the facts on which it is based.]
(5) Where it receives a notice of appeal under this Article against an enforcement notice relating to any land, the planning appeals commission shall notify the district council for the district within which the land is situated and in exercising its powers under Article 71 the commission shall take into account any representations received by the commission from the district council.
(6) Before determining an appeal under this Article, the planning appeals commission shall, if either the appellant or the Department so desires, afford to each of them an opportunity of appearing before and being heard by the commission.
(7) Articles 21 and 25(2) shall apply, with any necessary modifications, in relation to an appeal to the planning appeals commission under this Article as they apply to an application for planning permission to the Department.
(8) Where an appeal is brought under this Article, the enforcement notice shall be of no effect pending the final determination or the withdrawal of the appeal.
(9) Subject to paragraph (10), the validity of an enforcement notice shall not, except by way of an appeal under this Article, be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought.
(10) Paragraph (9) shall not apply to proceedings brought under[F2 Article 72] against a person who—
(a)has held an estate in the land since before the enforcement notice was issued;
(b)did not have a copy of the enforcement notice served on him; 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 issued; and
(ii)his interests have been substantially prejudiced by the failure to serve him with a copy of it.
70.—(1) On an appeal under Article 69 the planning appeals commission shall quash the enforcement notice, vary the terms of the notice or uphold the notice.
(2) On such an appeal the planning appeals commission may correct any[F3 misdescription], defect or error in the enforcement notice, or vary its terms, if it is satisfied that the correction or variation can be made without injustice to the appellant or to the Department.
(3) Where it would otherwise be a ground for determining such an appeal in favour of the appellant that a person required to be served with a copy of the enforcement notice was not served, the planning appeals commission may disregard that fact if neither the appellant nor that person has been substantially prejudiced by the failure to serve him.
71.—(1) On the determination of an appeal under Article 69, the planning appeals commission may—
(a)grant planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control, whether in relation to the whole or any part of those matters or in relation to the whole or any part of the land to which the notice relates;
(b)discharge any condition or limitation subject to which planning permission was granted;
(c)determine whether, on the date on which the appeal was made, any existing use of the land was lawful, any operations which had been carried out in, on, over or under the land were lawful or any matter constituting a failure to comply with any condition or limitation subject to which planning permission was granted was lawful and, if so, issue a certificate under Article 83A.
(2) The provisions of Articles 83A to 83D mentioned in paragraph (3) shall apply for the purposes of paragraph (1)(c) as they apply for the purposes of Article 83A, but as if—
(a)any reference to an application for a certificate were a reference to the appeal and any reference to the date of such an application were a reference to the date on which the appeal is made; and
(b)references to the Department were references to the planning appeals commission.
(3) Those provisions are Articles 83A(5) to (7), 83C(4) (so far as it relates to the form of the certificate), (6) and (7) and 83D.
(4) In considering whether to grant planning permission under paragraph (1), the planning appeals commission shall have regard to the development plan, so far as material to the subject matter of the enforcement notice, and to any other material considerations; and planning permission that may be granted under paragraph (1) is any planning permission that might be granted on an application under Part IV; and where under that paragraph the planning appeals commission discharges a condition or limitation, it may substitute another condition or limitation for it, whether more or less onerous.
(5) Where an appeal against an enforcement notice is brought under Article 69, the appellant shall be deemed to have made an application for planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control and, in relation to any exercise by the planning appeals commission of its powers under paragraph (1)—
(a)any planning permission granted under that paragraph shall be treated as granted on that application;
(b)in relation to a grant of planning permission or a determination under that paragraph, the decision of the planning appeals commission shall be final; and
(c)subject to sub-paragraph (b), any planning permission granted under that paragraph shall have the like effect as a permission granted under Part IV.
(6) Where—
(a)the notice under paragraph (4) of Article 69 indicates the ground mentioned in paragraph (3)(a) of that Article;
(b)any fee is payable under regulations made by virtue of Article 127 in respect of the application deemed to be made by virtue of the appeal; and
(c)the planning appeals commission gives notice in writing to the appellant specifying the period within which the fee must be paid,
then, if that fee is not paid within that period, the appeal, so far as brought on that ground, and the application shall lapse at the end of that period.]
72.—(1) Where, at any time after the end of the period for compliance with an enforcement notice, any step required by the notice to be taken has not been taken or any activity required by the notice to cease is being carried on, the person who is then the owner of the land is in breach of the notice.
(2) Where the owner of the land is in breach of an enforcement notice he shall be guilty of an offence.
(3) In proceedings against any person for an offence under paragraph (2), it shall be a defence for him to show that he did everything he could be expected to do to secure compliance with the notice.
(4) A person who has control of or an estate in the land to which an enforcement notice relates (other than the owner) must not carry on any activity which is required by the notice to cease or cause or permit such an activity to be carried on.
(5) A person who, at any time after the end of the period for compliance with the notice, contravenes paragraph (4) shall be guilty of an offence.
(6) An offence under paragraph (2) or (5) may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under the paragraph in question by reference to any period of time following the preceding conviction for such an offence.
(7) Where—
(a)a person charged with an offence under this Article has not been served with a copy of the enforcement notice; and
(b)the notice is not contained in the appropriate register kept under Article 124,
it shall be a defence for him to show that he was not aware of the existence of the notice.
(8) A person guilty of an offence under this Article shall be liable—
(a)on summary conviction, to a fine not exceeding £30,000;
(b)on conviction on indictment, to a fine.
(9) In determining the amount of any fine to be imposed on a person convicted of an offence under this Article, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence.]
73.—[F6(1) Where the Department considers it expedient that any relevant activity should cease before the expiry of the period for compliance with an enforcement notice, it may, when it serves the copy of the enforcement notice or afterwards, serve a notice (in this Order referred to as a “stop notice”) referring to, and having annexed to it a copy of, the enforcement notice and prohibiting the carrying out of that activity on the land to which the enforcement notice relates, or any part of that land specified in the stop notice.
(2) In this Article and Article 67 of the Planning (Northern Ireland) Order 1972 (NI 17) “relevant activity” means any activity specified in the enforcement notice as an activity which the Department requires to cease and any activity carried out as part of that activity or associated with that activity.
(3) A stop notice may not be served where the enforcement notice has taken effect.
(3A) A stop notice shall not prohibit any person from continuing to use any building, caravan or other structure situated upon the land as his permanent residence whether as owner, occupier, tenant, patient, guest or otherwise.
(3B) A stop notice shall not take effect until such date as it may specify (and it cannot be contravened until that date).
(3C) The date specified in a stop notice shall be the date when the notice is served, unless the Department considers that there are special reasons for specifying a later date, but the date specified in the notice shall, in any case, be a date not later than 28 days from the date when the notice is first served on any person.
(3D) A stop notice shall not prohibit the carrying out of any activity if the activity has been carried out (whether continuously or not) for a period of more than 4 years ending with the service of the notice; and for the purposes of this paragraph no account is to be taken of any period during which the activity was authorised by planning permission.
(3E) Paragraph (3D) does not prevent a stop notice prohibiting any activity consisting of, or incidental to, building, engineering, mining or other operations or the deposit of refuse or waste materials.]
(4) A stop notice shall cease to have effect when—
(a)the enforcement notice referred to in it is withdrawn or quashed; or
(b)the[F6 period for compliance with the] enforcement notice expires; or
(c)notice of withdrawal of the stop notice is first served under paragraph (6); or
(d)if or to the extent that the activities prohibited by it cease, on a variation of the enforcement notice referred to in it,[F6 relevant activities].
(5) A stop notice may be served by the Department on any person who appears to it to have an estate in the land or to be engaged in any activity prohibited by the notice; and where a stop notice has been served in respect of any land, the Department may display there a notice (in this Article referred to as a “site notice”) stating—
(a)that a stop notice has been served; and
(b)that any person contravening the stop notice may be prosecuted for an offence under this Article, giving the date when the stop notice takes effect and indicating its requirements.
(6) The Department may at any time withdraw a stop notice (without prejudice to its power to serve another)—
(a)by serving notice to that effect on persons served with the stop notice; and
(b)if a site notice was displayed in respect of the stop notice, displaying a notice of the withdrawal in place of the site notice.
[F6(7) If any person contravenes a stop notice after a site notice has been displayed or the stop notice has been served on him he shall be guilty of an offence.
(7A) An offence under this Article may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under this Article by reference to any period of time following the preceding conviction for such an offence.
(7B) References in this Article to contravening a stop notice include causing or permitting its contravention.
(7C) A person guilty of an offence under this Article shall be liable—
(a)on summary conviction, to a fine not exceeding £30,000;
(b)on conviction on indictment, to a fine.
(7D) In determining the amount of any fine to be imposed on a person convicted of an offence under this Article, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence.]
(8) In proceedings for an offence under this Article it shall be a defence for the accused to prove that the stop notice was not served on him and that he did not know, and could not reasonably have been expected to know, of its existence.
(9) A stop notice shall not be invalid by reason that a copy of the enforcement notice to which it relates was not served as required by Article[F6 68] if it is shown that the Department took all such steps as were reasonably practicable to effect proper service.
74.—[F7(1) Where any steps required by an enforcement notice to be taken are not taken within the period allowed for compliance with the notice, a person authorised in writing by the Department may—
(a)enter the land and take the steps; and
(b)recover from the person who is then the owner of the land any expenses reasonably incurred by it in doing so and those expenses shall be a civil debt recoverable summarily.]
(2) Any expenses incurred by the owner or occupier of any land for the purposes of complying with an enforcement notice in respect of any breach of planning control, and any sums paid by the owner of any land under paragraph (1), in respect of expenses incurred by the Department in taking steps required to be taken by such a notice, shall be deemed to be incurred for the use and at the request of the person by whom the breach of planning control was committed.
(3) The Department may sell any materials which have been removed by it from any land when carrying into effect this Part if, before the expiration of three days from their removal, they are not claimed by their owner and taken away by him.
(4) Where the Department sells any materials under paragraph (3), it shall pay the proceeds to the person to whom the materials belonged after deducting the amount of any expenses recoverable by it from him.
(5) Paragraphs (3) and (4) do not apply to refuse removed by the Department.
(6) Where the Department claims to recover any expenses under this Article from a person as being the owner of the land in respect of which the expenses were incurred and that person proves that he—
(a)is receiving the rent of that land merely as agent or trustee for some other person; and
(b)has not, and since the date of the service on him of a demand for payment has not had, in his hands on behalf of that other person sufficient money to discharge the whole demand of the Department,
his liability shall be limited to the total amount of the money which he has or has had in his hands as mentioned in sub-paragraph (b), but the Department where it is, or would be, debarred by this paragraph from recovering the whole of any such expenses from an agent or trustee may recover the whole of any unpaid balance thereof from the person on whose behalf the agent or trustee receives the rent.
(7) Any expenses recoverable by the Department under this Article shall, until recovered, be deemed to be charged on and payable out of the estate in the land in relation to which they have been incurred, of the owner of the land and of any person deriving title from him.
(8) The charge created by paragraph (7) shall be enforceable in all respects as if it were a valid mortgage by deed created in favour of the Department by the person on whose estate the charge has been created (with, where necessary, any authorisation or consent required by law) and the Department may exercise the powers conferred by sections 19, 21 and 22 of the [1881 c. 41] Conveyancing Act 1881 on mortgagees by deed accordingly.
[F7(9) Any person who wilfully obstructs a person acting in the exercise of powers under paragraph (1) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.]
75.—(1) Where, after the service of—
(a)a copy of an enforcement notice; or
(b)a breach of condition notice,
planning permission is granted for any development carried out before the grant of that permission, the notice shall cease to have effect so far as inconsistent with that permission.
(2) Where after a breach of condition notice has been served any condition to which the notice relates is discharged, the notice shall cease to have effect so far as it requires any person to secure compliance with the condition in question.
(3) The fact that an enforcement notice or breach of condition notice has wholly or partly ceased to have effect by virtue of this Article shall not affect the liability of any person for an offence in respect of a previous failure to comply, or secure compliance, with the notice.]
76.—(1) Compliance with an enforcement notice whether in respect of—
(a)the completion,[F9 removal] or alteration of any buildings or works, or
(b)the discontinuance of any use of land,
or in respect of any other requirement contained in the enforcement notice, shall not discharge the enforcement notice.
(2) Without prejudice to paragraph (1), 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 IV; 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 paragraph (1), if any development is carried out on land by way of reinstating or restoring buildings or works which have been[F9 removed] 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[F9 removed] or altered; and, subject to paragraph (4), Article 74 shall apply accordingly.
(4) Where, at any time after an enforcement notice takes effect—
(a)any development is carried out on land by way of reinstating or restoring buildings or works which have been[F9 removed] or altered in compliance with the notice, and
(b)the Department proposes, under Article 74(1), to take any steps required by the enforcement notice for the[F9 removal] or alteration of the buildings or works in consequence of the reinstatement or restoration,
the Department shall, not less than 28 days before taking any such steps, serve on the owner and occupier of the land a notice of its intention to do so.
(5) 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[F9 removed] 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 level 5 on the standard scale; and no person shall be liable under[F9 Article 72(2)] for failure to take any steps required to be taken by an enforcement notice by way of[F9 removal] or alteration of what has been so reinstated or restored.