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.
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:
- 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
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 our 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.
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.
What correspondence should I expect to receive from the Department?
The receipt of all complaints will be acknowledged, unless submitted anonymously. Other than in the case of anonymous complaints, every effort will be made to update all complainants on the status of the investigation in a timely manner; the Department aims to investigate action requests within 10 working days. It is also recommended that members of the public regularly review the Official Gazette where lists of planning applications which have been submitted are published every few days.
Once an Action Request is received, what are the next steps?
- The Action Request is registered in the Department's case management system, given a unique reference number and assigned to an enforcement officer
- The Action Request is investigated, which includes:
1. Researching if planning permission and/or a building permit were required and, if so, whether they were granted for the works and whether any conditions of approval have been satisfied
2. A visit to the site by an enforcement officer if it is suspected that there may have been a breach of planning control
The Department may contact the complainant if additional information is required to complete an investigation and may also issue a Planning Contravention Notice to any party deemed to be involved in the suspected breach of planning control, as detailed below.
After the investigation, if it is determined that a breach of planning control has occurred within the time limits set out above, the matter is will be categorized as a Code Case. The complainant, and any other person who the Department may have contacted on the matter, will be notified if it is deemed that no breach of planning control has occurrred or the Department will otherwise not be proceeding with enforcement action.
What is the process for Code Cases?
A ‘Breach of Planning Control’ letter will be sent to the landowner and any other person or organization deemed to be responsible for the breach (such as, but not limited to, a contractor, project manager, agent/architect, tradesperson, engineer or consultant) explaining why the works are considered to constitute a breach and advising on the necessary actions to resolve the matter. A period of 28 days is typically set from the date of the ‘Breach of Planning Control’ letter within which the party/parties responsible for the breach must make a formal application to seek to regularize the breach by submitting a retroactive planning and/or building permit application or implement appropriate remediation, which may comprise the removal of the works in question. The letter will also stipulate that no further works should continue until the Code Case has been closed.
If a retroactive planning application is submitted, it will be considered against the provisions set out by the Department’s Guide to Retroactive Applications. The processing of a Code Case will take into account the outcome of such an application and any subsequent appeal.
Depending on the severity of the Code Case and/or if the required actions have not been taken to resolve the matter, the Department may consider taking formal enforcement action.
What are the forms of enforcement action that can be taken?
Under section 61E of the Act, the Director may serve a planning contravention notice where it appears that there may have been a breach of planning control requiring the person on whom the notice is served to give such information as requested by the Director relating to the use of the land, activities being carried out on the land and any matters relating to planning conditions pertaining to the land. Failure to comply with a planning contravention notice is an offence and may be subject to penalties.
Once a case has been investigated, which may or may not involve the issuance of a planning contravention notice, the Director may proceed with one or more of the following forms of formal enforcement action.
Under section 62 of the Act (or section 67 in respect of maintenance of waste land or section 68 in respect of unauthorized excavation, site preparation and development), the Director may issue an enforcement notice where it appears that there has been a breach of planning control and it is expedient on planning grounds, in the opinion of the Director, to issue an enforcement notice. An enforcement notice may be issued for development or works which have been carried out without the requisite planning permission or building permit and may require the building or land to be restored to its condition before the development/works took place or require person(s) responsible to secure compliance with the relevant planning regulations and building code.
Under section 62A of the Act, the Director may serve a breach of condition notice if a condition of a planning permission has not been complied with requiring the person(s) responsible to secure compliance with said conditions within a specified timescale.
Under section 63 of the Act, the Director may serve a stop notice requiring the immediate cessation of any development of land where such action is deemed to be necessary in the public interest.
A person found guilty of an offence for a failure to comply with any of the above forms of enforcement action could become liable to substantial fines and/or imprisonment, as specified in the relevant sections of the Act.
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.
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.
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.
Whether it is possible for the harm which has been caused by the act to be entirely mitigated without causing other potential harm.
The extent to which the person was accountable for the breach of planning control, having regard to their part in the development process.
Consideration will be given to the number and severity of any prior breaches carried out by the person or organisation in question.
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.
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.
Letters of objection and/or representation should be emailed to planningfrontdesk@gov.bm referencing the PLAN or SUB number in the subject line.