When planning rules are not followed carefully, the threat of enforcement from the council can be alarming. Apex Planning Consultants explains how it works…
In our last blog of 2019, we looked at some of the successful cases that we have dealt with. Here in the first blog of 2020, let’s look again at one of them, and explain the process involved with enforcement action.
In our December blog, we described how we were able to help to negotiate with a local authority, when it threatened enforcement action after it appeared that planning controls were breached.
In that case, a dentist’s illuminated sign appeared to be contrary to permitted development within a Conservation Area. We were able to work with the council and note the fact that it was a medical practice, with the result that it was recognised that the sign was in fact permitted development. This required an assessment of the location, size and type of illuminated sign that had been erected, and confirmation of the medical practice being undertaken. Then, using the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended), we were able to establish that the ‘development’ the client had undertaken meant it benefited from ‘deemed consent’, which effectively means it is permitted development. The case showing this was submitted to the council and it duly concurred and closed the enforcement enquiry.
So, what is the process for enforcement action?
Planning enforcement action can be activated when planning rules have not been followed; when planning permission has not been sought or has been retrospectively refused, or where the conditions of planning permission have not been followed.
Who will serve an enforcement notice?
Local authorities have the power to serve enforcement notices for developments within the areas for which they have responsibility.
When deciding whether to service an enforcement notice, the local authority must consider the impact both on the health, housing needs and welfare of those who will be affected by the enforcement action, as well as those who are being affected by the breach of planning control.
It should be noted that enforcement action is not a first step, officers should seek to resolve the matter through negotiation and compromise, however, where this is not possible or the offending individual / company refuse to engage, this can lead to the serving of an enforcement notice. This is the first step towards ‘direct action’ and or Court intervention.
There are time limits within which the local authority must serve an enforcement notice. If the breach concerns the change of use of a building to a single dwelling house, or breach of planning control consisting of operational development, the notice must be served within 4 years. For the change of use of land or the breach of a planning condition, they have up to 10 years to take enforcement action.
However, there is provision for this deadline to be extended, especially where enforcement has already been served but proved to be defective and another order needs to be served.
This extended deadline can also apply where there have been deliberate attempts to hide the breach of planning control – a famous example is the farmer who hid a mock Tudor castle behind straw bales for seven years!
If this sort of concealment occurs, the local planning authority can either serve an enforcement notice ‘out of time’ or apply for a planning enforcement order.
The enforcement notice
An enforcement notice should let the recipient know exactly what it is that breaches planning control and tell them what steps they need to take to remedy the situation, and the time by when they should be completed.
Included with the notice will be an explanatory sheet, and information on how to appeal.
Sometimes, a local authority will not require that all works are removed or stopped, when a breach of planning control is identified, it might only require some lesser action to be taken – this is called ‘under enforcement’.
What happens if you don’t comply with the enforcement notice?
If you don’t appeal and simply refuse to comply with the notice, you could be subject to a fine – this fine is unlimited. To determine the amount the Court will consider what financial benefit you have or are likely to gain from the development or alteration. If you are convicted, the local authority can apply for a Confiscation order (Proceeds of Crime Act 2002) to recover any financial benefit that has been made from an unlawful development.
The local authority also has the power to enter the relevant land and carry out the changes themselves – and it is an offence to stop anyone who is carrying out this work. The local authority can also apply to recover the costs of this work from the owner.
Can I appeal?
If someone does not believe the enforcement notice is justified – it might be that they believe the council is out of time and due to the passage of time the change of use or operational development is now immune from control, or that there are good grounds for granting planning permission retrospectively – or that it has not be served correctly, there is scope to lodge an appeal to the Planning Inspectorate.
The appeal must be submitted prior to the date the enforcement takes effect; this date should be stated on the enforcement notice.
There is no guarantee of a successful appeal and if you should fail, with the appeal being dismissed, the requirements of the enforcement notice will again take effect, albeit the Planning Inspector has discretion to vary the detail, terms and timing of its requirements.
Are there alternatives?
There are other options for councils that may avoid the costly and drawn-out process of enforcement action. For instance, they may attempt to get changes made without a formal enforcement notice, especially where it is evident that the breaches are not deliberate.
They may also decide that it would be appropriate for retrospective planning application to be submitted. However, they can decline this opportunity if an enforcement has already been issued.
It’s clear that the issue of enforcement action is serious – and can be costly and time consuming for developers. Using a planning consultant can help to avoid such issues in the first place, but if you do become subject to an enforcement notice, using the skills of an experienced consultant could help you find your way out of the planning enforcement maze, including the preparation of a robust appeal against the enforcement notice.
If you would like to discuss your own project with us, or just find out more about what we do, please continue to browse the website or drop us an email to: firstname.lastname@example.org without obligation.