Tue 06 Feb 2018

Putting a stop to development: lawfulness of Stop Notices

The Town and Country Planning (Scotland) Act 1997 gives planning authorities the power to issue enforcement notices where it appears to them that there has been a breach of planning control.

The enforcement notice will specify a period for compliance at the end of which any steps are required to be have been taken or any activities are required to have ceased.   Where the planning authority consider it expedient, they can issue a stop notice requiring an activity to cease prior to the expiry of the compliance period set out in the enforcement notice.

The recent case of Community Windpower Limited v East Ayrshire Council [2017] CSIH 67 (https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2017csih6715ef42a7898069d2b500ff0000d74aa7.pdf?sfvrsn=0)  involved a challenge to a stop notice which had been issued requiring commencement of works in respect of a windfarm to cease.  Various criticisms were made of the stop notice, including that the stop notice was irrational and lacked specification and clarity.

The Court provided the following guidance in respect of the requirements for stop notices.

  • A stop notice must specify the prohibited activity with sufficient clarity.  However, there is no particular prescribed form of notice or other essential information which must be included.
  • The stop notice must be interpreted sensibly on what appears to be a reasonable meaning in all of the circumstances of the case, including the consequences of breach.
  • The function of the Court is not to introduce strict rules not required by the legislation.

The stop notice in this case had immediate effect, rather than the usual minimum period of 3 days after the notice is served.  In responding to the challenge to this, the Court stated that:

"It is a matter of planning judgment for the authority to determine whether special reasons exist to justify immediate effect.  It is not for this court to reach a decision on that matter…"

If you require any advice on enforcement or stop notices, please contact a member of the Morton Fraser planning team.

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