| Compliance
notice |
39. (1) Where it appears to the Authority
that a breach of planning control has taken place, that is to say -
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(a) that any development of land has been carried out
without the grant of development permission required under Part IV;
or
(b) that any conditions or limitations subject to which
development permission was granted, have not been complied with;
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then the Authority may, if it considers it
expedient to do so having regard to any development plan applicable
to the land where the breach of planning control is alleged to have
taken place, and to other material planning considerations such as
are set out in section 28 and section 40 serve a compliance notice
in accordance with subsection (2) requiring the breach to be
remedied.
(2) A copy of the compliance notice
shall be served on the owner and on the occupier of the land to
which it relates; and may be served on any other person having a
material interest in the land, that is to say an interest which in
the opinion of the Authority is materially affected by the notice;
on the authorised representatives of the aforementioned persons; and
on any other person carrying on, or who is in control of a person
carrying on activities on the land which are alleged to constitute
the breach of planning control.
(3) The fact that the Authority fails to
serve it on any one or other of the persons mentioned in subsection
(2) shall not invalidate any action or proceedings against any other
of such persons.
(4) A compliance notice shall take
effect on the date specified in it as the date on which it will take
effect ( in this Part referred to as the "specified date")
.
(5) A copy of a compliance notice shall
be served not later than 14 days from the date of issue and not less
than 28 days before the specified date.
(6) A compliance notice shall state
clearly -
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(a) which breaches of planning control referred to in
paragraphs (a) and (b) of subsection (1) are alleged to have taken
place;
(b) the particulars of development which appear to constitute the
breach;
(c) the person or persons on whom it is served in accordance with
subsection (2);
(d) the steps which the Authority requires to be taken to remedy
the breach and the time within which they must be taken;
(e) the powers of the Authority, in case of default in compliance
with the notice, to enter upon the land and take the steps specified
in paragraph (d);
(f) the penalties which may be incurred if the steps specified in
paragraph (d) are not taken; and
(g) the opportunities which are available to the person or
persons on whom the copy of the compliance notice was served, to
appeal the notice.
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(7) The steps
which the Authority may require to be taken by a person on whom a
compliance notice has been served, to remedy the breach to which the
compliance notice relates, may be one or more of the following
namely -
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(a) to submit an application for development
permission for retention of the unauthorised development;
(b) to cease any specified operations on the land which are
alleged to be in breach of planning control;
(c) to restore the land as near as may be to the appearance and
state that it had before the breach took place including replacement
of soil or water; planting or replanting of trees and other
vegetation;
(d) to comply with any limitation or condition in a grant of
development permission;
(e) to demolish, remove or modify a building or works in whole or
in part;
(f) to carry out any building or other operations on the land to
which the notice relates;
(g) to discontinue any use of land or buildings;
(h) to remove anything placed on the land without development
permission;
(i) to remove any advertisement or to display it in the place
permitted by a grant of development permission;
(j) to remove any unauthorised marks of identification in, on, or
over land which have as their purpose the identification of a
boundary of a sub-division alleged to constitute a breach of
planning control;
(k) to remove or prevent any damage to the land or amenities of
the area which has been or is likely to be caused by the development
which constitutes the breach of planning control;
(l) to do or to refrain from doing or to take or to refrain from
taking any actions similar to those listed in paragraphs (a) to (k)
which would assist in the ending of the unauthorised development.
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(8) The Authority
may-
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(a) withdraw a compliance notice (without prejudice to
its power to issue another one in respect of the same breach of
planning control) and shall if it does so, serve a notice of
withdrawal on every person who was served with a copy of the
compliance notice and the compliance notice shall cease to have
effect as from its date of withdrawal;
(b) modify a compliance notice and if it does so, the provisions
of this section shall apply to any modification of a compliance
notice made under this section as they apply to the compliance
notice;
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(9) The powers
conferred by subsection (8) may be exercised whether or not the
notice has taken effect. |
| Material
planning considerations with respect to compliance notices |
40. In considering whether or not a compliance notice shall be
served and the terms of any such notice, the Authority shall, in
addition to the matters specified in section 28, take into account
such of the following matters as may be relevant in the
circumstances of the particular case, namely -
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(a) any development plan applicable to the land where
the breach of planning control is alleged to have taken place;
(b) any statement of policy issued by the Minister which is
relevant to the development;
(c) the nature and extent of the development which constitutes
the alleged breach;
(d) the extent or likely extent of damage to the natural or built
environment;
(e) the extent to which the development constitutes a nuisance or
a threat to public health and safety;
(f) any objections and representations made by persons in the
neighbourhood;
(g) the length of time the breach of control has continued;
(h) the benefits to the community (if any) resulting from the
development;
(i) any possible alternative measures which could be taken to
remedy the unauthorised development;
(j) the effect of the development on any public works;
(k) whether it is necessary, desirable and convenient having
regard to the public interest to serve or confirm a compliance
notice;
(l) any other material planning considerations.
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| Notice
to apply for develop- ment permission |
41. Where it appears to the Chief Planner
that a breach of planning control has taken place, he may by written
notice, served on the person or persons referred to in subsection
(2) of section 39, require that an application shall be submitted
for development permission, and if such an application for
development permission is submitted within 28 days of the service of
the notice, or such extended period as may be granted by the Chief
Planner, the Chief Planner shall refrain from issuing a compliance
notice pending the determination of the application. |
| Permission
for retention of buildings or continuance of use |
42. (1) Any person on whom a compliance notice is served, may within
the period specified in subsection (4) of section 39, apply to the
Authority for development permission in accordance with Part IV -
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(a) for the retention on the land of any building
or works to which the compliance notice relates; or
(b) for the continuance of any use of the land to
which the compliance notice relates;
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(2) Where the
Authority grants development permission in respect of an application
made under subsection (1), or in respect of an application made in
conformity with a notice issued under section 41, the Authority may
grant development permission with retrospective effect to the date
when the development commenced, or such other date as the Authority
considers to be appropriate in the particular case.
(3) Where the Authority grants
development permission under this section, the provisions of
subsection (5) of section 35 shall apply. |
| Suspension
of effect of compliance notice |
43. Where, before the date specified in the compliance notice as the
date on which it is to take effect -
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(a) an application is made to the Authority for
permission for the retention on the land of any buildings or works
to which the compliance notice relates, or for the continuance of
any use of the land to which the compliance notice relates; or
(b) notice of an appeal is given under section 68 by a person on
whom the compliance notice was served;
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the compliance notice shall be suspended
and shall not take effect pending the determination of the
application or appeal.
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| Stop order |
44. (1) Where the Authority considers it
expedient in the interests of public health, public safety or the
integrity of the environment that a breach of planning control
should cease before the expiry of the period for compliance with a
compliance notice, the Authority may, at the same time that they
serve a copy of the compliance notice or afterwards, being at any
time before the specified date in the compliance notice, serve an
order (in this Act referred to as a "stop order").
(2) A stop order shall refer to, and
have annexed to it, a copy of the compliance notice to which it
relates and shall prohibit any person on whom the stop order is
served from carrying out or continuing any specified activities on
the land, being activities either alleged in the compliance notice
to constitute a breach of planning control or so closely associated
therewith as to constitute substantially the same activities, and
shall direct that person to immediately cease and desist from the
activities prohibited.
(3) The activities which may be the
subject of a stop order shall include the depositing of refuse or
waste materials on land or causing environmental damage or
activities affecting the health or safety of persons where such
activities constitute a breach of planning control alleged in the
compliance notice.
(4) A stop order may be served by the
Authority on any person who appears to it to have an interest in the
land or to be concerned with the carrying out or the continuance of
any activities thereon.
(5) A stop order shall-
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(a) take effect from the date of its service;
(b) without prejudice to subsection (7) cease to have effect when
-
(i) the compliance notice to which it relates is withdrawn or
quashed;
(ii) the compliance period expires;
(iii) notice of the withdrawal of the stop order is served
under subsection (7).
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(6) A stop order
shall not be invalid by reason that the compliance notice to which
it relates was not served as required by section 39 of this Act if
it is shown that the Authority took all such steps as were
reasonably practicable to effect proper service.
(7) The Authority may at any time
withdraw a stop order (without prejudice to their power to serve
another) by serving notice to that effect on the person on whom the
stop order was served and the stop order shall cease to have effect
as from the date of its withdrawal.
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(8) It is hereby
declared that -
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(a) the Authority need not provide any person with an
opportunity to make representation prior to the making of a stop
order;
(b) there shall be no right of appeal to the Appeals Tribunal
against the making of a stop order;
(c) an appeal against the compliance notice to which it relates
shall not suspend the operation of a stop order;
(d) a person on whom a stop order is served may appeal to the
High Court against the making of the stop order within 28 days of
the service of the order and the Court may confirm the stop order
with or without modification, or quash it in whole or in part;
(e) the making of an appeal referred to in paragraph (d) shall
not suspend the operation of a stop order, and the stop order shall
remain in full force and effect pending the determination of the
appeal;
(f) no compensation shall be payable in respect of the
prohibition in a stop order of any activity which at any time when
the order is in force, constitutes, or contributes to, a breach of
planning control.
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| Injunctions |
45. Whether or not the Authority has
exercised or is proposing to exercise any other remedy under this
Act, the Minister may in any case that he thinks fit, apply to the
High Court-
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(a) for an injunction to restrain any violation of the
provisions of this Act;
(b) for an order to enforce any compliance notice or stop order
issued under this Act.
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| Action
by Authority for non-compliance with compliance notice |
46. (1) If a person on whom a compliance
notice was served, fails or refuses to take the steps required by
the compliance notice to remedy the breach of planning control
within the period specified in the compliance notice, the Authority
may authorise the Chief Planner to enter the land with such
assistance as may be necessary and take those steps in respect of
the unauthorised development to enforce the compliance notice as it
may see fit.
(2) When the Authority has exercised any
power under subsection (1), the Minister may recover as a civil
debt, from the person on whom the notice has been served, those
expenses reasonably incurred by the Authority in the exercise of
such power.
(3) If the person referred to in
subsection (2) , having been entitled to appeal under section 68,
has failed to make such an appeal he shall not be entitled in any
proceedings to dispute the validity of the action taken by the
Authority or the Chief Planner upon any ground that could have been
entertained on such an appeal.
(4) Nothing in this Part shall be
construed as requiring development permission to be obtained for the
resumption of a previous use of the land to which the compliance
notice relates, being a purpose for which it could lawfully have
been used if the development in respect of which a compliance notice
was served under section 39 had not been carried out.
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| Continuing
operation of compliance notice |
47. (1) Compliance with the requirements of a
compliance notice shall not discharge the compliance notice.
(2) Without restricting
the generality of subsection (1), where development is carried out
by way of reinstating or restoring buildings or works that have been
demolished or altered in accordance with a compliance notice, the
compliance notice shall, notwithstanding that its terms are no
longer wholly apt for the purpose, be deemed to apply in relation to
any building or works so reinstated or restored as it applied in
relation to such building or works before they were demolished or
altered, and subsections 46 (1), (2), and (3) shall apply
accordingly.
(3) Without affecting the operation of
section 46, a person who carries out any development on land by way
of reinstating or restoring buildings or works that have been
demolished or altered in accordance with a compliance notice is
guilty of an offence.
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