Town and Country Planning (Scotland) Act 1972 (repealed 27.5.1997)

[F1 Breach of condition] S

Textual Amendments

F1 S. 87AA and cross heading inserted before s. 87A (10.8.1992 in so far as the inserting section inserts into this Act a definition of a breach of condition notice, otherwise 25.9.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s.34 (with s. 84(5)); S.I. 1992/1937, arts.3, 4 (with art. 5).

[F2 F2 87AA Enforcement of conditions. S

(1) This section applies where planning permission for carrying out any development has been granted subject to conditions.

(2) The planning authority may, if any of the conditions is not complied with, serve a notice (in this Act referred to as a “breach of condition notice”) on—

(a) any person who is carrying out or has carried out the development; or

(b) any person having control of the land,

requiring him to secure compliance with such of the conditions as are specified in the notice.

(3) References in this section to the person responsible are to the person on whom the breach of condition notice has been served.

(4) The conditions which may be specified in a notice served by virtue of subsection (2)(b) of this section are any of the conditions regulating the use of the land.

(5) A breach of condition notice shall specify the steps which the authority consider ought to be taken, or the activities which the authority consider ought to cease, to secure compliance with the conditions specified in the notice.

(6) The authority may by notice served on the person responsible withdraw the breach of condition notice, but its withdrawal shall not affect the power to serve on him a further breach of condition notice in respect of the conditions specified in the earlier notice or any other conditions.

(7) The period allowed for compliance with the notice is—

(a) such period of not less than twenty-eight days beginning with the date of service of the notice as may be specified in the notice, or

(b) that period as extended by a further notice served by the planning authority on the person responsible.

(8) If, at any time after the end of the period allowed for compliance with the notice.

(a) any of the conditions specified in the notice is not complied with, and

(b) the steps specified in the notice have not been taken or, as the case may be, the activities specified in the notice have not ceased,

the person responsible is in breach of the notice.

(9) If the person responsible is in breach of the notice he shall be guilty of an offence.

(10) An offence under subsection (9) of this section 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 that subsection by reference to any period of time following the preceding conviction for such an offence.

(11) It shall be a defence for a person charged with an offence under subsection (9) of this section to prove—

(a) that he took all reasonable measures to secure compliance with the conditions specified in the notice; or

(b) where the notice was served on him by virtue of subsection (2)(b) of this section, that he no longer had control of the land.

(12) A person who is guilty of an offence under subsection (9) of this section shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(13) In this section—

(a) “conditions” includes limitations; and

(b) references to carrying out any development include causing or permitting another to do so.]

Textual Amendments

F2 S. 87AA and cross heading inserted before s. 87A (10.8.1992 in so far as the inserting section inserts into this Act a definition of a breach of condition notice, otherwise 25.9.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s.34 (with s. 84(5)); S.I. 1992/1937, arts.3, 4. (with art. 5)

[F3 87A Register of waste land, enforcement and stop notices. S

(1) Every F4 . . . planning authority shall, with respect to [F5 notices under section 63 of this Act], enforcement notices [F6 , breach of condition notices] and stop notices which have been served in relation to land in their district, keep a register—

(a) in such manner; and

(b) containing such information,

as may be prescribed; and there may also be prescribed circumstances in which an entry in the register shall be deleted.

(2) Every register kept under this section shall be available for inspection by the public at all reasonable hours.]

Textual Amendments

F3 S. 87A inserted by Local Government and Planning (Scotland) Act 1982 (c. 43), ss. 44, 69(2)

F4 Words in s. 87A(1) repealed (1.4.1996) by 1994 c. 39, s. 180(2), Sch. 14; S.I. 1996/323, art. 4(1)(b)(d), Sch. 2

F5 Words in s. 87A(1) substituted (10.8.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s. 61, Sch. 13 para. 22 (with s. 84(5)); S.I. 1992/1937, art. 3 (with art. 5)

F6 Words in s. 87A(1) inserted (10.8.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s. 61, Sch. 13 para. 22 (with s. 84(5)); S.I. 1992/1937, art. 3 (with art. 5)

Modifications etc. (not altering text)

C2 S. 87A extended (with modifications) by S.I. 1992/478, reg. 2, Sch.

C3 S. 87A modified (1.5.1993) by S.I. 1993/323, reg. 22, Sch. 4 Pts. 3, 5

88 Execution and cost of works required by enforcement notice. S

(1) If, within the period specified in an enforcement notice for compliance therewith, or within such extended period as the. . . F7 planning authority may allow, any steps required by the notice to be taken F8 . . .have not been taken, the. . . F7 planning authority may enter on the land and take those steps, and may recover from the person who is then the owner or lessee of the land any expenses reasonably incurred by them in doing so; and if that person, having been entitled to appeal to the Secretary of State failed to make such an appeal, he shall not be entitled in proceedings under this subsection to dispute the validity of the action taken in accordance with the notice by the. . . F7 planning authority.

[F9 (1A) In computing the amount of the expenses which may be recovered by them under subsection (1) above, a planning authority may include in that amount such proportion of their administrative expenses as seems to them to be appropriate.]

(2) Any expenses incurred by the owner, lessee or occupier of any land for the purpose of complying with an enforcement notice served in respect of any breach of planning control F10 . . .and any sums paid by the owner or lessee of any land under subsection (1) of this section in respect of expenses incurred by the. . . F7 planning authority in taking steps required by such a notice to be taken, shall be recoverable from the person by whom the breach of planning control was committed.

[F11 (3) If on a complaint by the owner of any land it appears to the sheriff that the occupier of the land is proventing the owner from carrying out work required to be carried out by an enforcement notice, the sheriff may by warrant authorise the owner to go on to the land and carry out that work.

(4) A planning authority taking steps under subsection (1) above may sell any materials removed by them from the land unless those materials are claimed by the owner within 3 days of their removal by the planning authority; and where such materials have been sold the planning authority shall, after deducting therefrom any expenses recoverable by them from the owner, pay him the proceeds of such sale.

(5) Where a planning authority seek, under subsection (1) above, to recover any expenses from a person on the basis that he is the owner of any land, and such person proves that—

(a) he is receiving the rent in respect of that land merely as trustee, tutor, curator, factor or agent of some other person; and

(b) he has not, and since the date of the service on him of the demand for payment has not had, in his hands on behalf of that other person sufficient money to discharge the whole demand of the authority,

his liability shall be limited to the total amount of the money which he has or has had in his hands as aforesaid; but a planning authority who by reason of the foregoing provisions of this subsection have not recovered the whole of any such expenses from a trustee, tutor, curator, factor or agent may recover any unpaid balance from the person on whose behalf the rent is received.]

[F12 (6) Any person who wilfully obstructs a person acting in the exercise of powers under subsection (1) of this section shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.]

Textual Amendments

F7 Word repealed by Local Government (Scotland) Act 1973 (c. 65), s. 172(2)

F8 Words in s. 88(1) repealed (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s. 84(6), Sch. 19, Pt.IV (with s. 84(5)); S.I. 1992/334, art. 4, Sch.1

F9 S. 88(1A) added by Local Government and Planning (Scotland) Act 1982 (c. 43), s. 69(2), Sch. 2 para. 23(a)

F10 Words in s. 88(2) repealed (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), ss. 61, 84(6), Sch. 13 para. 23, Sch. 19 Pt.IV (with s. 84(5)); S.I 1992/334, art. 4, Schs.1, 2

F11 S. 88(3)—(5) substituted for s. 88(3)(4) by Local Government and Planning (Scotland) Act 1982 (c. 43), s. 69(2), Sch. 2 para. 23(b)

F12 S. 88(6) inserted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s.39 (with s. 84(5)); S.I.1992/334, art. 4

Modifications etc. (not altering text)

C4 S. 88 modified (1.5.1993) by S.I. 1993/323, reg. 21, Sch. 4 Pts.2, 5

89 Enforcement notice to have effect against subsequent development. S

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

(a) the [F13 removal] or alteration of any building 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 subsection (1) of this section, 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 III of this Act; 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 [F14 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 [F14 removed]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 [F14 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 [F15 level 5 on the standard scale].

Textual Amendments

F13 Word in s. 89(1) substituted (26.3.92) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s. 61, Sch. 13 para. 24(a) (with s. 84(5)); S.I. 1992/334, art. 4, Sch.2

F14 Words in s. 89(3)(4) substituted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s. 61, Sch. 13, para. 24(b) (with s. 84(5)); S.I. 1992/334, art. 4, Sch.2

F15 Words substituted by virtue of Criminal Procedure (Scotland) Act s. 289G (as inserted by Criminal Justice Act 1982 (c. 48), s. 54)

Modifications etc. (not altering text)

C5 S. 89 extended (with modifications) (26.3.1992) by S.I. 1992/478, reg.2, Sch.

S. 89 modified (1.5.1993) by S.I. 1993/323, reg. 21, Sch. 4 Pts.2, 5

[89A F16 Effect of planning permission, etc., on enforcement or breach of condition notice. S

(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 section 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.]

Textual Amendments

F16 S. 89A substituted (26.3.1992 except in so far as it relates to a breach of condition notice, 25.9.1992 so far as not already in force) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s. 61, Sch. 13 para.25 (with s. 84(5)); S.I. 1992/334, art. 4, Sch. 2 and S.I. 1992/1937, art. 4 (with art. 5)

Modifications etc. (not altering text)

C6 S. 89A modified in part (1.5.1993) by S.I. 1993/323, reg. 21, Sch. 4 Pts.2, 5

C7 S. 89A(1)(a) extended (26.3.1992) by S.I. 1992/478, reg.2, Sch.

C8 S. 89A(3) extended (with modifications) (26.3.1992) by S.I. 1992/478, reg.2, Sch.

Textual Amendments

F1 S. 87AA and cross heading inserted before s. 87A (10.8.1992 in so far as the inserting section inserts into this Act a definition of a breach of condition notice, otherwise 25.9.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s.34 (with s. 84(5)); S.I. 1992/1937, arts.3, 4 (with art. 5).

[F17 Breach of condition] S

Textual Amendments

F17 S. 87AA and cross heading inserted before s. 87A (10.8.1992 in so far as the inserting section inserts into this Act a definition of a breach of condition notice, otherwise 25.9.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s.34 (with s. 84(5)); S.I. 1992/1937, arts.3, 4 (with art. 5).

[F3 87A Register of waste land, enforcement and stop notices. S

(1) Every F4 . . . planning authority shall, with respect to [F5 notices under section 63 of this Act], enforcement notices [F6 , breach of condition notices] and stop notices which have been served in relation to land in their district, keep a register—

(a) in such manner; and

(b) containing such information,

as may be prescribed; and there may also be prescribed circumstances in which an entry in the register shall be deleted.

(2) Every register kept under this section shall be available for inspection by the public at all reasonable hours.]

Textual Amendments

F3 S. 87A inserted by Local Government and Planning (Scotland) Act 1982 (c. 43), ss. 44, 69(2)

F4 Words in s. 87A(1) repealed (1.4.1996) by 1994 c. 39, s. 180(2), Sch. 14; S.I. 1996/323, art. 4(1)(b)(d), Sch. 2

F5 Words in s. 87A(1) substituted (10.8.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s. 61, Sch. 13 para. 22 (with s. 84(5)); S.I. 1992/1937, art. 3 (with art. 5)

F6 Words in s. 87A(1) inserted (10.8.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s. 61, Sch. 13 para. 22 (with s. 84(5)); S.I. 1992/1937, art. 3 (with art. 5)

Modifications etc. (not altering text)

C2 S. 87A extended (with modifications) by S.I. 1992/478, reg. 2, Sch.

C3 S. 87A modified (1.5.1993) by S.I. 1993/323, reg. 22, Sch. 4 Pts. 3, 5

88 Execution and cost of works required by enforcement notice. S

(1) If, within the period specified in an enforcement notice for compliance therewith, or within such extended period as the. . . F7 planning authority may allow, any steps required by the notice to be taken F8 . . .have not been taken, the. . . F7 planning authority may enter on the land and take those steps, and may recover from the person who is then the owner or lessee of the land any expenses reasonably incurred by them in doing so; and if that person, having been entitled to appeal to the Secretary of State failed to make such an appeal, he shall not be entitled in proceedings under this subsection to dispute the validity of the action taken in accordance with the notice by the. . . F7 planning authority.

[F9 (1A) In computing the amount of the expenses which may be recovered by them under subsection (1) above, a planning authority may include in that amount such proportion of their administrative expenses as seems to them to be appropriate.]

(2) Any expenses incurred by the owner, lessee or occupier of any land for the purpose of complying with an enforcement notice served in respect of any breach of planning control F10 . . .and any sums paid by the owner or lessee of any land under subsection (1) of this section in respect of expenses incurred by the. . . F7 planning authority in taking steps required by such a notice to be taken, shall be recoverable from the person by whom the breach of planning control was committed.

[F11 (3) If on a complaint by the owner of any land it appears to the sheriff that the occupier of the land is proventing the owner from carrying out work required to be carried out by an enforcement notice, the sheriff may by warrant authorise the owner to go on to the land and carry out that work.

(4) A planning authority taking steps under subsection (1) above may sell any materials removed by them from the land unless those materials are claimed by the owner within 3 days of their removal by the planning authority; and where such materials have been sold the planning authority shall, after deducting therefrom any expenses recoverable by them from the owner, pay him the proceeds of such sale.

(5) Where a planning authority seek, under subsection (1) above, to recover any expenses from a person on the basis that he is the owner of any land, and such person proves that—

(a) he is receiving the rent in respect of that land merely as trustee, tutor, curator, factor or agent of some other person; and

(b) he has not, and since the date of the service on him of the demand for payment has not had, in his hands on behalf of that other person sufficient money to discharge the whole demand of the authority,

his liability shall be limited to the total amount of the money which he has or has had in his hands as aforesaid; but a planning authority who by reason of the foregoing provisions of this subsection have not recovered the whole of any such expenses from a trustee, tutor, curator, factor or agent may recover any unpaid balance from the person on whose behalf the rent is received.]

[F12 (6) Any person who wilfully obstructs a person acting in the exercise of powers under subsection (1) of this section shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.]

Textual Amendments

F7 Word repealed by Local Government (Scotland) Act 1973 (c. 65), s. 172(2)

F8 Words in s. 88(1) repealed (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s. 84(6), Sch. 19, Pt.IV (with s. 84(5)); S.I. 1992/334, art. 4, Sch.1

F9 S. 88(1A) added by Local Government and Planning (Scotland) Act 1982 (c. 43), s. 69(2), Sch. 2 para. 23(a)

F10 Words in s. 88(2) repealed (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), ss. 61, 84(6), Sch. 13 para. 23, Sch. 19 Pt.IV (with s. 84(5)); S.I 1992/334, art. 4, Schs.1, 2

F11 S. 88(3)—(5) substituted for s. 88(3)(4) by Local Government and Planning (Scotland) Act 1982 (c. 43), s. 69(2), Sch. 2 para. 23(b)

F12 S. 88(6) inserted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s.39 (with s. 84(5)); S.I.1992/334, art. 4

Modifications etc. (not altering text)

C4 S. 88 modified (1.5.1993) by S.I. 1993/323, reg. 21, Sch. 4 Pts.2, 5

89 Enforcement notice to have effect against subsequent development. S

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

(a) the [F13 removal] or alteration of any building 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 subsection (1) of this section, 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 III of this Act; 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 [F14 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 [F14 removed]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 [F14 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 [F15 level 5 on the standard scale].

Textual Amendments

F13 Word in s. 89(1) substituted (26.3.92) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s. 61, Sch. 13 para. 24(a) (with s. 84(5)); S.I. 1992/334, art. 4, Sch.2

F14 Words in s. 89(3)(4) substituted (26.3.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s. 61, Sch. 13, para. 24(b) (with s. 84(5)); S.I. 1992/334, art. 4, Sch.2

F15 Words substituted by virtue of Criminal Procedure (Scotland) Act s. 289G (as inserted by Criminal Justice Act 1982 (c. 48), s. 54)

Modifications etc. (not altering text)

C5 S. 89 extended (with modifications) (26.3.1992) by S.I. 1992/478, reg.2, Sch.

S. 89 modified (1.5.1993) by S.I. 1993/323, reg. 21, Sch. 4 Pts.2, 5

[89A F16 Effect of planning permission, etc., on enforcement or breach of condition notice. S

(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 section 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.]

Textual Amendments

F16 S. 89A substituted (26.3.1992 except in so far as it relates to a breach of condition notice, 25.9.1992 so far as not already in force) by Planning and Compensation Act 1991 (c. 34, SIF 123:2), s. 61, Sch. 13 para.25 (with s. 84(5)); S.I. 1992/334, art. 4, Sch. 2 and S.I. 1992/1937, art. 4 (with art. 5)

Modifications etc. (not altering text)

C6 S. 89A modified in part (1.5.1993) by S.I. 1993/323, reg. 21, Sch. 4 Pts.2, 5

C7 S. 89A(1)(a) extended (26.3.1992) by S.I. 1992/478, reg.2, Sch.

C8 S. 89A(3) extended (with modifications) (26.3.1992) by S.I. 1992/478, reg.2, Sch.