It all starts with planning – Planning enforcement powers and statutory exceptions
Planning permission is required for development, whether that be operational development (building, engineering, mining or other operations on land) or a material change of use.
Usually, planning permission will be obtained before development is commenced, or in some circumstances, applied for retrospectively. Otherwise, the development is unauthorised and therefore unlawful, and there is a risk of enforcement action by the Local Planning Authority (LPA).
It is important to note that a LPA does not have to take enforcement action, it is discretionary in instances where they consider it to be expedient. What is expedient is a matter of planning judgement for the decision-maker with regard to the LPA’s development plan (or local enforcement plans, if applicable) and any other material considerations.
Enforcement powers
LPAs have a wide range of enforcement powers, including the ability to issue stop notices and in some circumstances can obtain court injunctions. One of the most common remedies is the issue of an enforcement notice. An enforcement notice will specify the alleged breach of planning control, the steps needed to remedy the breach and a date for compliance.
Failure to comply with the requirements of an enforcement notice within the specified time can result in an unlimited fine. In determining the amount of any fine, the Court is to have regard to any financial benefit which has accrued, or appears likely to accrue, in consequence of the offence. For example, the additional rent received from an unauthorised extension or the increase in land value achieved on a sale where there has been unauthorised development.
Proceeds of Crime
Finally, it is important to note that if an LPA is successful in a conviction for failure to comply with an enforcement notice, they can also apply for a Confiscation Order under the Proceeds of Crime Act 2002. The prosecutor has 6 years from the date of the conviction to begin confiscation proceedings. This is to recover the financial benefit obtained through the unauthorised development. This option is something which LPAs are becoming increasingly alive to and we are increasingly seeing successful convictions in the press.
Time periods for enforcement
However, there is one final way to regularise unauthorised development; this is when it can no longer be enforced against and is therefore lawful due to the passage of time.
There used to be different planning enforcement time periods for different types of development. Operational development and a material change of use to a single dwelling-house had a four year enforcement time period. All other breaches of planning control (changes of use and breach of conditions) had a 10 year enforcement time period.
However, from 25 April 2024 all breaches of planning control (which were not substantially completed by this date) now have a 10 year enforcement time period. This is following changes introduced by the Levelling-Up and Regeneration Act 2023.
Whilst this simplifies matters, it does significantly increase the enforcement time period for unauthorised operational development and single dwelling-houses which is something to be aware of.
Cases of deliberate concealment and relevant demolition
There are two exceptions to the new universal 10 year rule:
- the first is where the breach of planning control has been deliberately concealed. In these cases, a LPA may take enforcement action outside of the 10 year time period but this must be within 6 months of the breaches coming to their attention. The threshold for deliberate concealment is high, with an element of ‘active’ concealment needing to have taken place. For example, in Planning Appeal cases concerning the amalgamation of residential properties, failure to update the Council Tax and utilities position of the properties has not be found sufficient to constitute deliberate concealment; and
- the second is the demolition of unlisted buildings in a Conservation Area (defined as “relevant demolition”). It is an offence to undertake or permit relevant demolition without planning permission. Such offence can attach to whoever undertook or authorised the demolition and is therefore not only restricted to the owner or occupier of the land. Retrospective planning permission does not obviate the offence. A conviction can result in a fine and also imprisonment.
Please don’t hesitate to contact Alice Gordon-Finlayson, Senior Associate in our Planning Team, for advice on enforcement or any other planning matters.
