An introduction to… planning enforcement

If development is carried out without required planning permission, this is a breach of planning control. Likewise, failure to comply with any condition or limitation attached to an existing planning permission is a breach of planning control.

For the purposes of Town and Country Planning Act 1990 (“TCPA 1990”), a breach of planning control can be subject to enforcement action. Enforcement of such breaches is generally the responsibility of the local planning authority (“LPA”) although it is at their discretion as to whether enforcement action is taken.

When considering enforcement action, the LPA should act proportionately and have regard to the scale of the breach, the National Planning Policy Framework (NPPF), the development plan and any other material considerations, as well as their public sector equality duty.

Process

If a complaint has been received or the LPA suspects that a breach of planning control has occurred, initial investigation may be carried out using a desktop analysis of the planning history of the site.

The LPA can also contact the owner or occupier informally and/or carry out a site visit. The purpose of such steps should be to establish whether a breach has occurred, the degree of harm which may be caused, and whether those responsible are willing to take action to remedy the breach.

If informal action is unsuccessful, the LPA may decide to further investigate in the ways set out below.

• Request information from the occupier and any person who receives rent in respect of premises. It is an offence to fail to respond to these notices or make misrepresentations in response.
• Serve a planning contravention notice on any person with an interest in the land or person who is using the land. It is also an offence to provide false information in response to a planning contravention notice.
• Enter land for enforcement purposes to ascertain whether there has been any breach of planning control, determine if any enforcement powers should be exercised, and/or establish whether there has been compliance with prior enforcement action. The LPA must have reasonable grounds for entering and it is an offence to obstruct an authorised person from entering.

Once satisfied there has been a breach, the LPA may decide to take enforcement action.

Enforcement action is defined at Section 171A of TCPA 1990 as the issue of an enforcement notice or the service of a breach of condition notice. However, there are other ways an LPA can tackle breaches of planning control. LPAs can initiate any combination of the following:

• enforcement notices
• stop notices
• temporary stop notices
• breach of condition notices, and
• injunctions

For example, where there is a breach that could lead to serious harm, the LPA may choose to serve a stop notice alongside an enforcement notice. This means any activity or works must cease as soon as the stop notice is served.

Time limits for LPA’s to take enforcement action

Enforcement action can be taken within 4 years if the breach consists of carrying out operations without planning permission (i.e. carrying out works that require planning permission) or changing the use of a building to a single dwelling. In relation to other changes of use and breaches of planning conditions, enforcement action can be taken within 10 years.

Enforcement outside of these time periods may be permitted if a breach has been intentionally concealed. For enforcement outside of enforcement periods, the LPA can apply for a Planning Enforcement Order.

It should be noted that the Government are looking to make the enforcement period for all breaches ten years via the Levelling Up and Regeneration Bill.

Enforcement notices

An enforcement notice must include:

• the boundaries of the land to which it relates;
• details of the breach of planning control;
• the reasons for taking enforcement action (including relevant development plan policies);
• the steps required to remedy the breach;
• the date of which it will take effect;
• the period given for compliance; and
• details of the rights to appeal.

The notice must be served on every person with an interest in the land within 28 days of the issue of the notice and no less than 28 days before the final set compliance date.

Failure to comply with an enforcement notice is a criminal offence.

Appeals

The issue of an enforcement notice can be appealed against. Appeals must be received before the effective date specified in the notice and they will suspend the operation of the notice until the appeal is concluded. However, it is only enforcement notice that can be appealed against (and not, for example, stop notices) and breach of conditions notices can also not be appealed against.

A non-exhaustive list of ways we may be able to help:

• assist in reporting instances of suspected breaches of planning control to your local planning authority;
• represent you against enforcement action;
• review enforcement notices to check their validity;
• assist with appeals against enforcement action;
• advise on whether works carried out may be at risk of enforcement action.

Elizabeth Mutter is a solicitor in Irwin Mitchell's Planning team.