Enforcement warning notices
Roderick Morton assesses the potential use of enforcement warning notices under s172ZA of the Town & Country Planning Act 1990.
The enforcement warning notice legislation is already in force in Wales and will be brought into force in England when the enforcement provisions of the Levelling Up and Regeneration Act 2023 come into force, expected April 2024.
The intention is that the EWN can be issued where a planning breach is not sufficiently egregious to require an immediate enforcement notice but requires regularisation by way of a conditioned planning permission. An example might be a change of use to a restaurant in a location where a restaurant would be acceptable if opening hours etc are conditioned.
In such cases, LPA enforcement officers typically write to developers informally inviting an application with enforcement notice or breach of condition notice only being issued in the absence of an application (or its subsequent refusal). Such communications do not stop the clock for immunity purposes and it is not uncommon for discussions and negotiations to go on for sufficient time that the development becomes immune. The EWN goes some way to addressing that problem. But not all the way.
Timing
As the EWN is “enforcement action” for the purposes of s171B, it can only be issued within the periods set out in s171B which, by the time this legislation comes into force, will be 10 years from the date of the breach for all breaches in England. (Wales retains the 4/10 year limits for now).
Effect on immunity
While marketed as stopping the accrual of immunity, Enforcement Warning Notices do not in fact stop the immunity clock.
If a developer fails to comply with the EWN such that further enforcement action is required, the time limits in s171B will still apply to that subsequent enforcement action. It will still be necessary to issue the enforcement notice or breach of condition notice before the later of
- 10 years from the date of the breach or
- 4 years from the date of the enforcement warning notice (as a second bite).
The only extension of time, then, is that the EWN constitutes a “first bite” enforcement action which triggers the second bite provisions in s171B(4) TCPA 1990 and therefore extends the time to take subsequent enforcement action by 4 years.
Pre-requisites
There must be a breach of planning control. The notice will be of no effect if, later, it is found that there is no breach. The breach must be clearly specified in the notice with the same degree of clarity as an enforcement notice; Miller-Mead would apply.
There must be a reasonable prospect that permission would be granted if it is sought. The permission can be a conditional one. This requirement could prove tricky in some cases. In issuing a notice, the LPA is confirming that permission is fairly likely. That may come back to bite in terms of the expediency of future enforcement action. It may also become a material consideration in a future ground (a) appeal or permission application, either for the enforcement development or for some other future development which uses the enforcement development as a fallback.
There are also some situations in which the LPA simply cannot come to the conclusion that permission is likely to be granted, for example where an Environmental Impact Assessment is required.
Who can/must be served?
The EWN must be served on the owner and occupier of the land. It must also be served on anyone else who has an interest in the land. In this respect it is like an enforcement notice. There is no power to issue to anyone else (eg person merely working on the land).
It runs with the land in the sense that its effect on immunity applies against future landowners or occupiers. However, as there is no requirement for compliance, there is nothing to bind a future landowner or occupier to make a planning application.
What can be required and when?
Nothing. There is no power to compel submission of a planning application. It is merely a warning that, in the absence of an application, further enforcement action will be considered.
As there is no compliance requirement, the EWN is immediately effective.
The EWN must specify the time within which the application for permission must be made. While not specified in the legislation, this presumably needs to be a reasonable period.
Authorisation, service and registration
Service is effected by the methods set out in s329 TCPA. The EWN must be entered into the s188 register.
As this is “enforcement action”, it needs to be suitably authorised. Delegations need to be checked, a report prepared, human rights and the equality duty etc considered.
Offence?
It is not an offence to fail to comply with an EWN. There is no scope to force a developer to make an application.
In the event the developer fails to comply with the notice by making a planning application, the only way to force regularisation is if the LPA takes additional enforcement action by way of enforcement notice or breach of condition notice.
Right of appeal
There is no right of appeal to the Planning Inspectorate.
In theory, there could be an ability for the developer to judicially review the decision to issue the EWN but, as it does not impose any obligation to comply, it is perhaps unlikely that any developer would wish to challenge the EWN at the time it is issued. Any challenge issued later, when the developer realises that second bite is triggered, may be out of time.
Model form
It is likely that a model form EWN will be published. In the meantime, the Welsh government publishes a model form for Wales here which could be adapted.
Will they be useful?
EWNs have been available in Wales since 2016 but there is no data available on the extent of their use.
They were marketed as an alternative to enforcement notices for situations where a conditioned permission would solve the breach. But that alternative already exists in the form of an informal invitation to the errant developer to apply for permission. The informal approach is also significantly more flexible than the EWN approach. And it doesn’t need a report and delegated authority.
It seems likely, then, that EWNs may be limited to situations where the breach is close to immunity and another 4 years would be advantageous. With the increase of the standard immunity periods to 10 years, these situations may be fewer and further between. Time will tell.
Roderick Morton is a partner at Ivy Legal. This article first appeared in Ivy Legal's monthly column for the Royal Town Planning Institute's Network for Planning Enforcement (NAPE) newsletter.
