We conclude our 2018 series of simple guides to the labyrinth of planning procedures, with a focus on the subject of planning enforcement…
What is planning enforcement?
If any development happens without planning permission or one fails to comply with the requirements of a planning condition, the local planning authority can use its powers, as defined in Section 171A of the Town and Country Planning Act 1990, to take enforcement action.
Enforcing planning law is a discretionary power of the local council – not a duty – so the council can decide when to take enforcement action. For instance, it can make a judgement about whether it is expedient to enforce. Ultimately however, the action should be in the public interest.
There are a number of reasons where planning enforcement will be brought to bear. For example:
- If a development causes harm to public amenity or to the character or appearance of a conservation area or where there is a listed building, or,
- There is a conflict with planning policy, or,
- Any other material consideration.
The Council will form its judgement whether to take action based on planning and possibly legal advice, bearing in mind the quality of evidence, the likelihood of success, the importance to the public interest and, in these times of austerity, the cost and resources necessary to take the action might be a consideration.
What does the Council’s planning enforcement officer do?
They will investigate any complaints to ascertain whether planning permission is needed for any works that has been started or completed and if so whether a breach of planning law has occurred.
The enforcement officers’ investigations can involve a review of evidence provided by third-parties, their own research via the serving of a planning contravention notice that requires requested information to be supplied by the operator/land owner, and observations arising from a site visit. They have a legal right of entry when they are investigating any alleged breaches of planning law, and can obtain a warrant if you refuse them entry.
If any planning laws are breached, good practice states the enforcement officer will enter into negotiations with the developer and will also be responsible for taking any enforcement action. They will also check that enforcement action is being complied with.
Why would the council seek to enforce against my development?
The council will do this if you have done anything that requires planning permission, without acquiring the permission first.
- Construction of buildings or works such as a wall or fence
- Change of use of buildings or land
- Display of advertisements
- Works to protected trees and hedgerows
- Alterations and works to listed buildings
- Demolition of certain buildings in a Conservation Area.
However, the role of the enforcement officer is not to arbitrate in neighbour disputes, land boundary or ownership disputes, deeds of covenant issues or works to party walls.
Will the Council automatically issue a planning enforcement notice?
Before this happens, the investigating officers will contact you to get an accurate picture of the facts.
If a breach of planning has occurred the council will decide whether to issue:
- An Enforcement notice
- A Stop notice (in relation to alleged breaches of planning specified enforcement notice and require their cessation within not less than 3 days)
- A Temporary stop notice (which requires the immediate cessation of a breach of planning, and any flouting of its requirements may be prosecuted)
- A Breach of condition notice (relating to planning conditions).
Within the notice you will be told what the breach of planning is considered to be, the steps required to remedy the breach or what activities are to be ceased and a timescale for this to be achieved. If you do not comply, then they will take formal enforcement action.
Can I negotiate with the Council and or seek retrospective planning permission?
A local authority can request that you apply for retrospective planning permission for the work that has already been carried out. However, there is no guarantee that this will be granted, and you could be forced to demolish any building or revert a site/building back to its original condition.
In other cases, it might be breaches of planning are a result of a genuine mistake, therefore, it might be easily remedied by ceasing the activity, removing an offending structure or restoring a site to its original state. If so, this can lead to no formal action by the council.
Negotiating with the council about this is best left to a planning consultant who has experience in these matters.
What are the planning enforcement time limits and what are my options?
Local authorities have to take action on enforcement:
- within 4 years of substantial completion for a breach of planning control consisting of operational development;
- within 4 years for an unauthorised change of use to a single dwelling house;
- within 10 years for any other breach of planning control (essentially other changes of use).
You can see our previous blog in respect to the contravention of planning conditions where the time limit is 10 years.
What is a planning enforcement appeal?
If an enforcement ‘notice’ is served you have the right of appeal to the Planning Inspectorate. This must be lodged before the enforcement notice comes into effect, which should be at least 28 days from the date it is issued.
An appeal can be lodged under several different grounds and a person can argue one or more grounds. For example, they include:
- planning permission ought to be granted or the condition or limitation concerned ought to be discharged
- the matters stated in the enforcement notice have not occurred
- copies of the enforcement notice were not served in accordance with the relevant statutory requirements
- any period specified in the notice falls short of what should reasonably be allowed.
An Inspector from the Planning Inspectorate will study your case and decide whether the enforcement notice should be upheld. If your appeal is allowed, the Inspector will grant planning permission, meaning the council can take no further action.
However, if the inspector judges that you should adhere to the notice, then you must carry out the requirements of the notice or risk prosecution. The council cannot prosecute you for failing to comply to the notice, while an appeal is being considered.
You cannot appeal against a Breach of Condition Notice and you will risk prosecution if you do not comply with it. The only available right to challenge the serving of such a notice is by application to the High Court for a judicial review.
What if I ignore an enforcement notice and do not lodge an appeal?
This is not advisable as it is an offence to ignore an enforcement notice, and a person is liable to conviction and an unlimited fine. This is another reason to seek early professional advice from a planning consultant.
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