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Drafting planning enforcement orders

Celina Colquhoun and Philippa Jackson analyse a High Court ruling that is a relatively rare example of the Courts considering planning enforcement orders and which also provides a useful reminder of the factors that give rise to new planning units.

In Malcolm Payne v Secretary of State for Housing, Communities and Local Government, Maldon District Council [2021] EWHC 3334 (Admin) the Appellant owned a farm of approximately 12 acres in size, and he and his family lived in a house on the farm. The farm included the appeal site as well as other land. In 2009 the house burned down and the appellant moved into a caravan and other buildings on the appeal site. Later that same year he converted a building into a day room and converted a garage into a bungalow. He also rebuilt the main house.

In 2010 the Appellant put the entire property up for sale but the eventual purchasers only wished to buy parts of the farm, excluding the appeal site. This sale, excluding the appeal site, was made in 2011.

In 2019 the local authority obtained a planning enforcement order (“PEO”) pursuant to s171BA and s171BC Town and Country Planning Act 1990. The breach of planning control was described as the material change of use of part of the land to residential with associated operational development, which was a reference to the conversion of the garage into a bungalow.

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In 2020 the local authority then issued an enforcement notice (“EN”) which identified the breach of planning control as being an unauthorised change of use to a mixed-use, comprising external and internal storage use, workshop, a caravan site for the station of a caravan used for residential purposes, and a change of use of the garage to residential with associated operational development.

The inspector dismissed the appellant’s appeal against the EN, finding that the effect of the PEO was to suspend the enforcement time limit in s171B(3) as it applied to the residential use of the converted garage, and that, as the residential use was part of the mixed-use of the site, the fact that enforcement action could be taken against that element of the breach meant that the mix of uses as a whole fell under the same suspension of the enforcement time limit.

The inspector also held that when the house was sold in 2011, the single planned unit had been divided and the mixed use described in the EN began. Consequently, the material change of use to a mixed use occurred less than ten years ago and the enforcement action was not time-barred in accordance with s171B.

The appellant in his subsequent appeal to the High Court under s289 argued that the inspector had misunderstood the effect of the PEO, which was confined only to the “apparent breach” detailed on the PEO, and did not extend to other uses on the site.

The appellant further argued in a second ground that there was no material change of use following the sale in 2011, and that the only rational conclusion was that the original planning unit, which encompassed the house and the 12 acres, was divided earlier in 2009 when the appellant ceased to live in the house and moved into the caravan and other buildings and not when the landholding had been sold and divided. To that end he argued the ten years immunity period could be met.


The appellant was successful in respect of his ground 1 arguments. The Court held that the relevant provisions in s.171BA and s.171BC were confined to the “apparent breach” specified in the PEO and the power to take enforcement action went no further. The PEO provisions were intended to operate only where a use had been concealed. They were not intended to operate in respect of other uses which were not concealed, merely because those uses were on the same site as part of a mixed use. The court also clarified that the PEO does not suspend or disapply the time limits in s.171B, as s.171BA(5)(a) states that subsection (2) applies (a) whether or not the time limits under s.171B had expired, and (b) did not prevent the taking of enforcement action after the end of the enforcement year but within those time limits. Instead, it permitted a further period of enforcement action in respect of the apparent breach specified in the PEO.

The Court noted that the LPA has a discretion as to which breaches of planning control it enforces against. An enforcement notice could have been issued which was limited to the breach identified in the PEO namely the residential change in use. It was not necessary to enforce against the entirety of the mixed-use in order to enforce against the breach in the PEO.

However, in order to succeed in his s289 appeal, it was common ground that the Appellant also had to succeed under his ground 2 i.e. that the Inspector erred in concluding that the material change of use occurred in 2011 rather than 2009. However, the Court found that there was a sufficient evidential basis on which the inspector could rationally conclude that the planning unit had split and the change of use occurred after the sale of the wider landholding in 2011. Although the house had burned down in 2009, the farm and wider site remained in single occupation with the Appellant and his family simply moving to other temporary accommodation on the site. The inspector in the Mrs Justice Lang’s view, was therefore plainly entitled to consider the planning unit prior to the 2011 on the basis of the prima facie case of the area of occupation and the single ownership of the land. The court found that this did not come close to the high threshold required for a finding of Wednesbury unreasonableness.


There have been only a handful of cases concerning the statutory regime for PEOs under s171BA and s171BC. This judgment highlights the importance of the need for careful drafting of PEOs, as enforcement action taken under s171BA and 171BC is confined to the ‘apparent breach’ specified in the PEO and cannot go further. It also clarifies the effect PEOs have on enforcement time limits, providing helpful guidance on the limitations of PEOs and the circumstances in which they should be sought.

The case also provides a timely reminder of the different factors that can influence the creation of a new separate planning unit.

Celina Colquhoun and Philippa Jackson are barristers at 39 Essex Chambers.

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