Levelling Up and Regeneration Bill: Changes to the Enforcement Regime
The Levelling Up and Regeneration Bill, which followed the Planning for the Future White Paper of 2020 and the Levelling Up White Paper of 2022, was announced in the Queen’s Speech on 10 May 2022. Irwin Mitchell has already produced a summary of the Bill and this article will focus on the proposed changes to the planning enforcement regime.
Planning Enforcement Changes
The Bill contains changes to the main enforcement regime which deals with breaches of planning control as well as changes to the listed building enforcement system and section 215 notices, which are notices where local planning authorities require owner/occupiers to carry out certain works to improve the appearance of their land where such appearance is detrimental to the general area. The changes in the Bill are aimed at closing what are perceived to be enforcement loopholes and allowing local planning authorities and communities to keep control of their area by empowering them to tackle breaches of planning control which can affect their area and environment.
Time Period for Enforcement
Local planning authorities have set time periods, set out in legislation, to enforce against unauthorised development. Failure to enforce within those time periods will mean that the unauthorised development will become immune to development and will be entitled to a lawful development certificate. The Bill will standardise the time periods which local planning authorities have to enforce against all unauthorised development to 10 years.
Currently, authorities have 4 years to enforce against unauthorised building and operational development as well as a change of use of a building to a single dwelling, and 10 years for breaches of condition and other material changes of uses. The differing time periods stemmed from the fact that it was deemed easier to detect unauthorised buildings than changes of use. Also, the shorter time scale for enforcing against a change of use to residential is justified on the basis that such enforcement often involves evicting someone from their home.
The change in the Bill will have the effect of buying more time for authorities, which are facing ever increasing pressures on resources, to take enforcement action within the statutory time limits. Without enforcement deadlines hanging over their heads, some authorities may be more inclined to negotiate a voluntary solution rather than enforce. It may simplify some complexities with the current different timeframes which have required clarification by the courts. For instance, if the same residential use constitutes a change of use to a single dwelling house as well as a breach of condition, the courts have decided that the time period for enforce is 4, rather than 10 years. The courts have also decided that building development may be enforced after 4 years from completion if they constitute an integral part of an unauthorised material change of use (where authorities have 10 years to enforce).
However, while these changes are not entirely negative, there is no doubt that lengthening the time limits for enforcement will reduce rights of landowners to achieve immunity from unlawful development. The changes are likely to have a greater impact on smaller developments and ‘developers’, who may have less resources to deal with an enforcement investigation or enforcement action. A recurring problem for smaller developers is knowing when and how to engage with the planning enforcement system before formal action is taken and understanding the importance of making an appeal to raise the relevant grounds.
Large scale developments are less likely to be carried out, in their entirety, without planning permission. A more frequent issue with larger developments is breaches of planning conditions, including pre-commencement or occupation conditions or building in accordance with the approved plans. Even in those situations, larger developers usually have the resources to rectify matters earlier and without the need for formal enforcement action. Also, the Bill provides further flexibility in this respect and includes provisions that enable temporary relief against enforcement action for non-compliance with certain conditions - these changes are triggered by well-publicised national and global difficulties with complying with conditions including for example COVID or the recent shortage in HGV drivers. The Bill itself does not reference any specific conditions and the power will be further detailed in regulations.
Enforcement Warning Notices
The Bill also introduces enforcement warning notices in England which are notices which authorities can serve when it appears to them that there has been a breach of planning control and there is a “reasonable prospect” that retrospective planning permission will be granted. Enforcement warning notices will ask the recipients to submit a planning application within a certain time period or face the risk of further enforcement action.
An informal system of inviting planning applications for unauthorised development which can be made acceptable already exists and is set out in many authorities’ local planning policies. However, a formal system with a threat of enforcement action will record the authority’s efforts to voluntarily resolve matters and may be more likely to achieve co-operation from the developer.
However, the subtle and perhaps most impactful change is that an enforcement warning notice is now defined as ‘enforcement action’, which is a defined term in planning legislation that stops the time period from running in respect of unauthorised development. Therefore the service of an enforcement warning notice will prevent unauthorised development from becoming immune and lawful and give the authority more time to serve an enforcement notice or breach of condition notice.
Enforcement Appeals
The Bill clarifies and expands current restrictions against appealing an enforcement notice on the ground that planning permission ought to be granted ( a ‘ground a’ appeal) where there is already a planning application in respect of the same development. The Bill will restrict ‘ground a’ appeals where there is a planning application in respect of the any of the development specified in the enforcement which is either under consideration or has been considered less than 2 years ago. These restrictions will sit alongside current powers in planning legislation for authorities to refuse to entertain planning applications where the development has been the subject of an enforcement notice on the basis that a ground a appeal could have been made, whether or not a ground a appeal was made or indeed the enforcement notice was appealed at all.
The current restrictions were only last week subject to judicial interpretation in Manchester City Council v Secretary of State for Housing Communities and Local Government [2022] EWHC 1062 (Admin) which found that providing a planning application encompasses the matters being enforced against it will be caught by the restrictions, rather than there being a need for the application to be identical to the matters enforced against. This interpretation is not set to change under the new legislation.
The Bill also gives powers to the appeal inspectors to dismiss appeals relating to enforcement notices and certificates of lawfulness where an appellant causes” undue delay”. This is aimed at clamping down on those who effectively stall the process to buy time to continue unauthorised development. The process will start with a notice from the Secretary of State explaining what the appellant has to do to take steps to expedite the appeal process.
The term “undue delay” clearly requires definition, however difficult that task may be, for this provision to be workable. Even with the prospect of clear guidance, we have some reservations about this power. The enforcement appeal process is already subject to strict, sometimes immoveable deadlines and delays come from the planning inspectorate’s scheduling issues as well as the appellant. While tactics and undue delay may indicate that there is no merit in an appeal, it may be unfair, from human rights perspective, to deprive someone of their ability to appeal based on delay alone.
Penalties
The penalty for failing to comply with an enforcement notice is a fine and there is no maximum limit set on that fine. There are provisions in the Bill to increase the maximum fine for section 215 notices to an unlimited fine for a first offence and at least £5000 for the second offence . There are also provisions to increase to maximum fines for breach of condition notice, a type of enforcement action to an unlimited fine.
Temporary Stop Notices
Temporary Stop Notices (“TSNs”) are notices that require the cessation of unauthorised development almost immediately, contrary to the enforcement notices which must allow a period of 28 days before the notice takes effect and the compliance period starts to run. The Bill contains provisions which extend the time period for TSNs to pause development from 28 to 56 days.
TSNs currently only exist in the main planning enforcement appeal. The Bill contains clauses which will extend that power to the listed building regime. In a way, it is surprising that the power does not currently exist in the Listed Building Act since irreversible harm to heritage assets is cited in many local enforcement policies as justification for TSNs. However the listed building enforcement system has managed without it partly because unauthorised works to listed buildings often constitute breaches of planning control, breach of listed building control is a direct criminal offence, unlike breaches of planning control, and because of other powers in the Listed Building Act, like the power to serve an urgent works notice and charge the landowner.
Like planning TSNs, failure to comply with a listed building TSN will be a criminal offence. It will be a defence to show that the works are urgently necessary in the interest of health or safety or the preservation of the building.
Given recent feeds in the press about the government’s intentions for the planning enforcement system, the proposed changes are less sweeping than we anticipated although they continue to chip away at the right to resolve all aspects of planning breaches by appeal. Closing loopholes and chasing down cynical exploitation of the planning system are worthwhile goals as long the planning enforcement regime continues to recognise the complexities within the system which are better dealt with by expert planners rather than in the criminal courts and that the focus remains on resolving planning issues rather than penalising people who are in breach of planning.
This article as written by Tracy Lovejoy and Erica Snellgrove.
