FAQs on monitoring and enforcing permitted minerals and waste development

Who makes the basic rules?

The Government issues guidance and regulations for enforcing planning control. The most recent publications are the National Planning Policy Framework (NPPF), and the National Planning Policy Guidance (NPPG), published in March 2012 & March 2014 respectively.

What types of development does the council deal with?

The county council as County Planning Authority is responsible for controlling minerals and waste-related development and will investigate complaints or concerns about activities involving mineral extraction such as sand and gravel, clay or oil and gas, or the handling, storage, processing or deposit of waste. The latter includes the deposit of soils or builders' waste on agricultural land, but does not include fly tipping which is a Local Planning Authority (District or Borough) responsibility. Report fly tipping to your district or borough council.

How do I complain or enquire about development?

You should contact the county council's planning enforcement team.

Is planning permission necessary before any development takes place?

Yes, most development requires planning permission. In the case of mineral working and processing and waste-related development the county council is the decision making authority.

Planning decisions are taken having regard to the particular circumstances in each case and on the basis of the planning policies set out in the Development Plan and any other factors that are relevant for a planning purpose. The Development Plan currently consists of the adopted Local Development Framework Documents in Surrey including the Surrey Waste Plan 2008, the Surrey Minerals Plan Core Strategy 2011, the Primary Aggregates Development Plan Document 2011, the Aggregates Recycling Joint Development Plan Document 2013 and the relevant borough or district Plan.

The county council will also take advice from statutory bodies such as the Environment Agency and other specialist consultees. The public can also make representations in relation to planning applications which will be taken into account when a decision is made.

When will the county council take enforcement action?

Enforcement action is discretionary and the county council must decide whether it is expedient to act to control the development. Subject to the 'expediency test', the county council will normally take enforcement action when there is no planning permission or where there is a failure to comply with any condition or limitation imposed on the planning permission and no acceptable remedy is proposed by the landowner or operator.

In some cases the landowner or operator may voluntarily agree and commit to carry out works which resolve the harm caused and will confirm this in writing. Such works will be monitored by County Enforcement Officers.

An alternative course to enforcement action is inviting a retrospective planning application. In inviting such an application the county council must consider the merits of granting planning permission for the unauthorised development. Government advice states that the fact that the development has already taken place should make no difference to council's consideration of the proposal.

The decision to take enforcement action in any particular case will depend on the particular circumstances that apply including the degree of harm that may arise as a result of the continued breach of planning control. The continued protection of the Green Belt will be an important consideration.

What sort of action can the county council take?

Where a breach of planning control is suspected a Planning Contravention Notice can be served to obtain information about the site and activity. Where a condition is not complied with a Breach of Condition Notice can be issued and cannot be appealed. If the activity must cease and or works are required then an Enforcement Notice may be served specifying requisite actions or works to remedy the breach of planning control. A Temporary Stop Notice may be served as an interim measure where urgency is required in halting a use or activity. A Stop Notice may be served in addition to an Enforcement Notice requiring works to cease promptly and will be effective in the interim if there is an appeal by the landowner/operator against the Enforcement Notice – see below.

A Planning Enforcement Injunction seeks to restrain an individual or individuals from carrying on a breach of planning control. An injunction is a discretionary measure imposed by the courts and any failure to comply with its terms is serious and may result in imprisonment. The service of a Stop Notice will require an assessment of the foreseeable costs to the business, operator or landowner against the amenity benefit likely to result for the action.

Does the landowner or operator have a right of appeal?

There is the right of appeal in the case of an Enforcement Notice. A decision would be made by an independent inspector appointed by the Planning Inspectorate following a Local Public Inquiry or possibly a Local Hearing or the exchange of Written Representations. An appeal effectively suspends an Enforcement Notice until the appeal is finally determined or the notice is withdrawn.

An application to the courts for a Planning Enforcement Injunction may be contested by the landowner or operator. The evidence in a case will be considered by a judge who will then make a decision. The decision to make an injunction order is at the discretion of the judge.

Who makes the decision to enforce?

Planning and Legal Officers have delegated authority to take enforcement action, or conversely not to initiate enforcement action.

Enforcement cases are not normally referred to the Planning and Regulatory Committee given the need to act promptly in many cases although Members are kept advised of all enforcement action taken.

Borough or district councils deal with all other forms of development, but may deal with waste matters where this has been agreed with the county council in cases where there are overlapping responsibilities.

How long will the process take?

The County Planning Authority will investigate an alleged breach of planning control and may need to obtain further information to progress matters. A landowner or operator may be given seven to fourteen working days to respond to written questions. The case is considered by planning and legal staff and an urgent case may be dealt with in a matter of hours. Once a decision has been taken to take action a Temporary Stop Notice can be issued in twenty four hours. An Enforcement Notice will take longer, but in most cases will be ready for service within seven days.

An injunction will take longer to prepare, as it requires the submission of detailed evidence to the court. There can also be a waiting list for court time. In urgent cases an interim injunction may be sought, which will remain in force until the final hearing, at which point the court will decide whether to make the injunction final. On an application for an interim injunction the landowner/operator is normally given notice of the injunction hearing although in exceptional cases an interim injunction may be granted without notice.

An appeal in any case could add significantly to the timescales. There is sometimes a waiting list of many months for a Public Inquiry.

How is the environment protected where there are vulnerable interests?

In each case the county council is required by Regulation 32 of Statutory Instrument 2011 No 1824: The Town and Country Planning (Environmental Impact Assessment) Regulations 2011 to consider whether Environmental Assessment is required. The requirement to consider the need for Environmental Assessment also extends to cases where it is not proposed to take enforcement action.

Is there a third party right of appeal for the public where enforcement action has not been taken?

If you are concerned about progress at a particular site then you can speak to your county councillor who will be able to pursue matters with officers on your behalf.

A member of public may use the county council's complaints procedure where they are concerned about the nature of action taken by the County Planning Authority where unauthorised development has been alleged. The public may also refer the case to the Local Government Ombudsman.

The possibility of judicial review exists where third parties with "sufficient interest" feel that a decision of the County Planning Authority is unlawful or unreasonable