Frequently Asked Questions

 

In what circumstances is planning permission required?

Planning permission is required for most visible external building works and changes of use on private land. There are a number of types of building works and changes of use that do not require planning permission, falling into two main categories:

• Works which are not defined as 'development' and therefore do notrequire permission.
• Works that already have permission, or 'deemed consent'.

The Town and Country Planning (General Permitted Development) Order 1995 automatically grants deemed consent for a wide range of works by virtue of 'permitted development rights'.

 

Some of these works are discussed are below, but if you want more in-depth or specific advice, you can contact the Planning Team.

 

How do I find out if my neighbour has planning permission?

You can search for Planning Applications by clicking on this link. Alternatively you cancontact the Planning Team direct.

 

What is a breach of planning control?

A breach of planning control is defined in the Town and Country Planning Act 1990 as “the carrying out of a development without the required planning permission, or failing to comply with any condition or limitation subject to which planning permission has been granted.”

 

There are two main ways in which a breach of planning control can occur:

• Building work or engineering operations or changes in the use of land or buildings that are carried out without the necessary planning permission.

However, not all building/engineering work or changes of use require planning permission. Many are either considered notto be development at all or are defined as 'permitted development', meaning that an application for planning permission is not necessary

• Where planning permission has been granted but the development or use is not being carried out in accordance with the plans or conditions attached to the approval.

For example, a building may be larger thanshown on the approved plans or a condition that specifiesthe working hours of a business may not be beingcomplied with.

 

What happens when a breach of planning control is confirmed?

When it is clear that a breach of planning control has occurred, the council will consider what, if any action it is expedient to take. These may be:

 

If the breach is minor with no significant effects – no further action may be taken.

 

If the development is such that it is in line with the relevant Local Plan policies and causes no harm – the council will usually invite a “retrospective” Planning Application for planning permission or advertisement consent and no further action will be taken unless that application is subsequently refused, at which time the council will reconsider what further action is warranted.

 

If the breach could be immune from enforcement action due to the passage of time - an application for a Lawful Development Certificate will be invited and no further action will be taken, unless that application is subsequently refused, at which time the council will reconsider what further action is warranted.

 

If permission is unlikely to be granted – the council will ask for the use to cease, or unauthorised development to be removed or appropriately modified, voluntarily. A suitable period of time will be allowed, depending on what needs to be done.

 

As a last resort formal enforcement notices can be issued (see below). This is adiscretionary decision which will be made on a case by case basis. The council must be able to justify taking formal action and be sure that the steps specified in any notice and the period for compliance with each step, are reasonable (i.e. sufficient only to remedy the harm arising from the breach of planning control).

 

Where an Enforcement Notice or other notice takes effect, but is not complied with, any owner/occupier who has control of, or has an interest in the land, can be prosecuted. Where appropriate, and if other means have not secured a cessation of the breach being enforced against, the council will consider using its default powers to take direct action to remedy the breach of planning control, recovering the cost from the owner or placing a legal charge on the land.

 

The council will try and resolve breaches informally and by negotiation with the owner/occupier of the land. Formal action, in accordance with national advice, only takes place where it is expedient and where other means to resolve the problem have been unsuccessful.A breach of planning control is not in itself a Criminal Offence.

 

For most cases, in order to help us to decide what action we should take we will consult with both internal and external statutory and non statutory organisations (such as the local highway authority) to seek their views on the development. We will also seek views on the development from those occupiers of residential properties adjacent to or nearby the site of the alleged breach of planning control, and from the local Parish Council.

 

What are the options for Formal Action?

Breach Of Condition Notice - where there is a breach of a condition on a planning permission a Breach of Condition Notice may be issued. This will set out the steps required to be taken to comply with the condition and the time periods for compliance.

 

Enforcement Notice - an Enforcement Notice sets out the breach of planning control, the steps that must be taken to remedy the breach, the planning reasons for taking the action and the time period for compliance. An Enforcement Notice does not have to require the whole of the breach to be removed or undone. The Enforcement Notice may specify ‘under enforcement’ – i.e. steps sufficient to make the development acceptable, e.g. restricting hours of use or requiring works such as noise insulation or screening. The effect of ‘under enforcing’ is that planning permission would be granted for those aspects of the development not required to be removed by the Enforcement Notice.

 

Stop Notice - where an Enforcement Notice has been served a Stop Notice may also be issued at the same time to stop the use or the building works continuing. However, this power should only be used in extreme cases where the development is causing immediate, unacceptable and irreparable harm.

 

Injunction - this is a court order and only used in the most extreme of cases where all other efforts have failed or it can be demonstrated that they are unlikely to be successful

 

S215 Notice – where the complaint relates to the untidy state or appearance of land (including buildings). If it is decided that there is resultant harm to the amenity of the area a notice under this section of the Town and Country Planning Act may be served, which sets out what actions (including the repairs to buildings or removal of items from the land) are required to be undertaken to remedy the harm.

 

If any of the above notices or an injunction is not complied with, the council may elect to prosecute the person who has breached planning control in the Courts. In reaching the decision to prosecute the council must consider it to be in the public interest. If that person is found guilty, the Courts may impose an appropriate fine. The Council may also consider taking steps to remedy the breach of planning control itself, which may include serving notice that its own employees or contractors have the right to enter the land and carry out the necessary works in default. If the Council carries out works in default, steps will be taken to recover the costs of such action, including by putting a charge on the property.

 

What does 'immunity' from enforcement action mean?

There are some situations where breaches of planning control are immune from enforcement action. We do not have the power to take enforcement action against a developer when:

 

• An unauthorised building or operational development has been substantially completed for four years or more
• An unauthorised change of use from a building to a dwelling-house has been in place for four years or more
• An unauthorised change of use to a building or piece of land was made ten years ago or more.
• Conditions of a planning permission were breached ten years ago or more.

If the owners of land or property think that a breach of planning has become immune from enforcement action, they can apply for a Lawful Development Certificate. This is a legal document that confirms the use, operation or activity on the site as long as no further changes are made.

 

How do I make a complaint?

Anybody may make a complaint about an alleged unauthorised development or use.

 

Complaints can be made in writing, by telephone by calling 01622 602736 or emailing customerservices@maidstone.gov.uk

 

When making a complaint, the council will ask for the following information to be provided (as far as possible):

 

• The precise location of the site or property to which the complaint relates;

• The exact nature of concern i.e. the alleged breach of planning control;

• An indication of any harm caused/being caused and how you are being affected;

• The name, address and contact telephone number of the person making the complaint; and, if possible

• The identity of the person/organisation responsible for the breach and the date and or time the breach began.

 

In most cases you will be asked to fill in a form to provide this information, without which your complaint cannot be further investigated. Where appropriate, the Planning Enforcement Team will liaise with other council services and external agencies in order to ensure the most appropriate form of action is taken in order to resolve any complaint. Where the nature of the breach overlaps with responsibilities of another agency, the council will work in partnership with that body to resolve the matter.

 

How quickly will my complaint be dealt with?

Some breaches can cause considerably more harm than others. We must ensure our resources are used to deal with those that have the most impact. For example, the potential permanent loss of, or damage to, an historic building or protected trees will have greater priority than the temporary nuisance of mud on the road from the development of a new housing area, or the arrival of a new shed in a neighbour’s garden.

 

For urgent cases, where there maybe a threat to, or permanent serious damage to the environment we aim to visit within one working day. For other cases, we aim to have completed the initial investigation within eight weeks of receiving the information. If enforcement action is appropriate we will prioritise cases for legal action based on the amount of harm and if the situation is likely to deteriorate further.

 

Can my neighbour erect a wall or fence without planning permission?

Unlessthere are special circumstances, such as theirproperty is a Listed Building, your neighbour can erect a 'means of enclosure' (gate, wall, fence, etc) up to one metre in height where it is adjacent to a highway, or up to two metres in height on any other boundary.

 

If an existing means of enclosure is altered or repaired, it can extend to its former height. For more detailed or specific advice, visit the Planning Portal websiteor contact thePlanning Team.

 

For more detail, view the The Town and Country Planning (General Permitted Development) Order 1995online.

 

You should be aware that the ownership of land and boundaries is a civil matter and cannot be dealt with by the planning department.

 

Can my neighbour build an extension without planning permission?

In most cases, if the property is a single dwelling house (and not flats) then your neighbour may erect an extension (including a conservatory) within certain size restrictions.

 

There are a number of restrictions and limitations. Although some of the size limitations are explained below, given the complexity of the legislation, you should seek confirmation by contacting the PlanningTeam or visiting the Planning Portal website for more comprehensive details or specific advice.

 

For further information, view the The Town and Country Planning (General Permitted Development) Order 1995online.

 

- If the property is within a Conservation Area or is a terraced house, the total volume of the extension(s) must not exceed 50 cubic metres, or 10 percent of the original dwelling house, whichever is the greater.

 

- In any other case, the total volume of the extension(s) must not exceed 70 cubic metres, or 15 percent of the original dwelling house, whichever is the greater. This volume is the total allowed for all extensions on the property, therefore the volume of any other extensions, including roof extensions, should be subtracted from this allowance.

 

Can my neighbour build a roof extension without planning permission?

In most cases, if the property is a single dwelling house (and not flats) and not in a Conservation Area, then your neighbour may erect a roof extension to the rear of the property within certain size restrictions.

 

There are a number of restrictions and limitations, and although some of the size limitations are explained below, given the complexity of the legislation, you should seek confirmation by contacting the Planning Team or visiting the Planning Portal website for more comprehensive details or specific advice.

 

For full details, view theTown and Country Planning (General Permitted Development) Order 1995 online.

• The total volume of the extension(s) to the roof must not exceed 40 cubic metres, in the case of a terraced house or, 50 cubic metres in any other case. The roof extension must not front a highway and must not exceed the highest part of the existing roof.
• Internal loft conversions that do not extend beyond the existing roof may not require planning permission. However, the insertion of a roof-light in a conservation area may require planning permission.

Can my neighbour change their shop to a café without planning permission?

If a property has a lawful use as a retail shop (use class A1) and changes to a restaurant, takeaway or café serving hot food (use Class A3), planning permission is likely to be required.

 

However, if the café is only serving cold food with little or no seating provision for consumption on the premises, planning permission may not be required. Similarly, permission may not be required if the majority of the premises still remain in a shop (Class A1) use.

 

The specific considerations will have to be assessed on a case by case basis.

For more detailed advice contact the Planning Team.

 

Can my neighbour run a business from their house?

Your neighbour does not necessarily need planning permission to run a business from their home. Each case has to be assessed on a case by case basis, but the main test is whether the overall character of the dwelling has changed as a result.

 

If the house is still mainly being used as a private residence, then planning permission may not be required.

 

For further details visit the Department for Communities and Local Government (formerly the ODPM) planning web pages.

 

How are unauthorised Developments and Illegal Encampments investigated?

If a person(s) enter land which they do not own and set up permanent or temporary residence this could be an illegal encampment. It is the responsibility of the land-owner to take action to evict the trespassers and the police have limited powers under certain circumstances to take action to have them removed.

 

An unauthorised development is when the owner of land carries out development for which the premises does not have planning consent and this could include placing a mobile home or caravan on the site for residential occupation.

 

In both cases if the occupation continues, and the land does not have planning consent for residential accommodation, the Planning Enforcement Team can investigate if there is a breach of planning control.

 

In some circumstances, the Council is obliged to consider if the provisions of Circular 01/06 Planning for Gypsy and Traveller Caravan sites and the Human Rights act are relevant.

 

The Council does not have the power to take immediate action to have occupants forcibly removed from land even if illegal or antisocial acts are allegedly being carried out by the new occupants.

 

Can my neighbour cut down a tree on their property?

Your neighbour cannot carry out works without prior consent to a tree that is protected. A tree is protected if it is in a designated conservation area and/or if it is subject to a tree preservation order.

 

To find out if a tree has a tree preservation order on it, you should contact the Landscape and Conservation Team.

 

Your neighbour can cut down, or carry out works to any unprotected tree on private land.

 

How do I find out who owns my neighbour's property or a plot of land?

The council does not retain this information. You can obtain itby contacting the Land Registry - the government department which holds records of who owns land and property in England and Wales.

 

What can I do if my neighbour is building on my land?

If your neighbour is carrying out building works that are on your land, you should seek legal advice from a solicitor or the Citizens Advice Bureau.

 

Land disputes are a civil matter in which the Council cannot intervene, unless the works themselves require planning permission

 

Who can help me if my neighbour is carrying out works to a party wall?

Works to party walls are purely a civil matter controlled by theParty Wall etc Act 1996 and the council has no enforcement power to intervene. You should contact a party wall surveyor for advice in this matter;

 

Who can help me if my neighbour's builders are working un-sociable hours?

If building works are occurring on the site outside of normal working hours (8am-6pm Monday to Friday and 8am –1pm on Saturdays) and are causing a noise nuisance, you should contact the council's Pollution Team.

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