Enforcement

Guide to Enforcement and Civil Penalties

Updated 9 November 2023

The Department’s Enforcement Section investigates development and other works which may have been carried out without the required planning permission or building permit or the failure to comply with a condition of a planning permission or building permit. An investigation may include advising on the process to bring the development into compliance or appropriate remedial action. The investigation may also result in the Department pursuing formal enforcement action.

This document should be read in conjunction with Part X of the Development & Planning Act 1974 (as amended) (the ‘Act’) and section 5 of the Building Act 1988, which set out the legislative framework within which enforcement action may be taken by the Department.

1

What can the Department investigate?

The Department will investigate and may take action over the following if the requisite planning permission and/or building permit has not been obtained or if the development fails to adhere to the approved drawings or is in breach of one or more conditions:

The Department may investigate

  • New buildings or structures, engineering works and site works, including re-grading
  • Additions or alterations (internal or external) to existing buildings
  • Changes of use of land and/or buildings
  • Excavation, filling or removal of vegetation within any land Designated as an 'Area of Special Environmental Value' or a 'Protected Conservation Area' (Schedule 4 and 5 of the Act respectively)
  • Works to a listed building or structure within a Historic Protection Area
  • Display of advertisements
  • Unsightly buildings or land which are injurious to the amenity of the area

The Department cannot take action for the following as they are not material planning issues:

  • Boundary disputes, land ownership issues and other civil matters
  • Claims of devaluation of property
  • Anti-social behaviour
  • Traffic enforcement, unless directly related to unauthorized development
  • Noise, odour or any other nuisance, unless directly related to unauthorized development
2

Is there a time limit for the enforcement of breaches of planning control?

Enforcement action cannot be taken against a breach of planning control which was carried out prior to 1 September 2012 unless enforcement action has previously been taken in respect of that breach.

In all other cases, enforcement action may be taken within six years from the date on which the breach of planning control took place, or within one year beginning with the date on which the Director was made aware of the breach, whichever period ends later.

3

How can I submit a complaint (‘Action Request’) to the Department?

Members of the public can submit an Action Request using the Action Request / Complaint Form which, once completed, should be submitted via email to planningenforcement@gov.bm. Completed forms may also be hand delivered to the Front Desk of the Department.

All Action Requests are confidential and contact details are requested only so the Department may contact the person submitting the Action Request, if necessary. Action Requests can also be submitted anonymously, although it will not be possible for the Department to discuss the case with the complainant if the Action Request is submitted anonymously.

An Internal Action Request may also be submitted by a public officer of any Government department.

4

What correspondence should I expect once I have submitted an Action Request?

Once an Action Request is submitted, a case will be opened and a member of the Enforcement Section will be assigned as the investigating officer. The investigating officer may contact the person who submitted the Action Request if further information is required.

The Department will not provide regular updates on the progress of an investigation. However, the person who submitted the Action Request may be advised when the case has been closed.

5

What is a Code Case?

A Code Case is a case opened by the Department where it appears that there may have been a breach of planning control or building control.

The opening of a Code Case does not necessarily mean that formal enforcement action will be taken. The Department may first seek to establish whether a breach has occurred and whether it is expedient to take formal enforcement action.

6

What happens if a breach is identified?

If a breach is identified, the Department may invite the responsible party to submit a planning application or building permit application to regularise the unauthorised development or works.

Where appropriate, the Department may also request that the unauthorised development or works be removed or that remedial action be taken.

If the breach is not resolved voluntarily, the Department may pursue formal enforcement action.

7

What is an Enforcement Notice?

An Enforcement Notice is a formal notice which may be served where it appears that there has been a breach of planning control and it is expedient to issue the notice, having regard to the provisions of the development plan and any other material considerations.

An Enforcement Notice may require steps to be taken to remedy the breach, including the removal of unauthorised development, the cessation of an unauthorised use, or compliance with conditions attached to a planning permission.

8

What is a Stop Notice?

A Stop Notice may be served where the Department considers it necessary to require an activity to stop before the expiry of the period for compliance with an Enforcement Notice.

A Stop Notice must be served with, or after, an Enforcement Notice and will specify the activity which must cease.

9

What are Civil Penalties and in what instances are they be imposed?

Civil penalties were introduced under the Development and Planning Amendment Act 2018, becoming section 69A of the Development and Planning Act 1974, and came into force on 1 July 2022.

A civil penalty is a monetary fine that can be imposed by the Director of Planning on top of the enforcement action steps noted above and can be served on any party considered responsible for a breach of planning control. Each person found responsible for the breach may be liable for a fine of up to $50,000 in addition to any further measures pursuant to the enforcement action set out above.

A civil penalty can be issued at any time during an enforcement investigation but may only be imposed if the contravention or failure to comply occurred after 1 July 2022.

The instances where the Director will typically impose civil penalties and the appropriate penalty amount to be imposed on each offending party is determined based on the following factors as set out by the Department’s Civil Penalties Statement of Principles, which were published in the Official Gazette on 9 November 2023.

Magnitude of adverse impact caused by the act

The degree of harm resulting from the act based on existing site circumstances, having regard to impacts on the amenity of neighbours or the local area and any natural, architectural, historic or any other features of interest which may have been affected, notwithstanding any future proposal to mitigate such harm.

Deliberateness or degree of negligence

Whether the person reasonably ought to have known that planning permission was required and, if so, whether they deliberately or negligently breached planning control and, in respect of the latter, the degree of negligence. Whilst it is not expected that everyone has a full understanding of planning regulations, the Department will typically expect a person to check with the Department whether planning permission is required prior to commencing development.

Consideration will also be given as to whether a person benefitted from the breach.

Irreversibility of the act

Whether it is possible for the harm which has been caused by the act to be entirely mitigated without causing other potential harm.

Degree of responsibility for the act

The extent to which the person was accountable for the breach of planning control, having regard to their part in the development process.

History of individual breaching planning control

Consideration will be given to the number and severity of any prior breaches carried out by the person or organisation in question.

Steps taken to mitigate adverse impact

The measures which have been taken by the person to date to mitigate the harm caused by the act, including whether the person has been cooperative with the Department to address the breach.

Prior to imposing a civil penalty, the Director will provide a warning notice setting out the amount of, and reason for, the penalty and give each person who is to be served the penalty the opportunity to make a written representation within seven days of the date of the notice. Any representations which are made will be considered by the Director in determining whether to proceed with issuing the civil penalty and, if so, the amount of the penalty.

10

What are the rights of recourse if the Department has taken enforcement action?

Development and Planning Appeals Tribunal

Only an ‘Enforcement Notice’ issued under section 62 or a Stop Notice’ issued under section 63 by the Director can be appealed to the Development and Planning Appeals Tribunal (the ‘Tribunal’) under section 61C of the Act within 28 days of the date on which the notice was served.

The Tribunal is made up of not more than twelve members with the Chairman and Deputy Chairman being barristers and/or attorneys and has all the powers of a court with the ability to summon witnesses, examine them under oath or otherwise and compel the production of any documents or things relevant to the proceedings. The Tribunal has the authority to overturn the notice and will determine whether issued notices are justified and were properly served.

Supreme Court

A person who does not agree with a decision made by the Tribunal, or a civil penalty imposed by the Director, may appeal the decision to the Supreme Court within twenty eight (28) days from the date of the Development and Planning Appeals Tribunal decision or the date of the decision notice issued by the Director instituting civil penalties.