A number of significant changes to the planning enforcement regime will come into effect from 25 April 2024. Perhaps the most notable of these is a change to the time period in which Local Planning Authorities can take enforcement action against unauthorised development. Rebecca Stewart explores some of these changes.
The changes are introduced through regulations which bring into force provisions of the Levelling-up and Regeneration Act 2023 (“the 2023 Act”), which provide various amends to the Town and Country Planning Act 1990 (“the TCPA 1990”) and Planning (Listed Buildings and Conservation Areas) Act 1990 (“the Listed Buildings Act”).
Time period for enforcement
It will now be the case that, as a starting point, LPAs can enforce against all breaches of planning control for a period of up to 10 years. For building (and other) operations that have taken place without planning permission, the enforcement period will run from the date on which such operations were substantially completed or, for all other breaches of planning control (including all changes of use), from the date of the breach. There will remain the possibility for this time period to be extended where there has been intentional concealment of a breach of planning control.
Previously, LPAs had only 4 years in which to enforce against unauthorised building operations or a change of use of any building (or any part of a building) to a single dwelling house. The changes (to be reflected in section 171B(1) and (2) of the TCPA 1990) therefore bring added consistency to enforcement rules and significantly extend LPA enforcement powers.
Whilst a longer enforcement window creates a possibility that LPAs will be less incentivised to take immediate action against breaches of planning control, London Borough LPAs are generally extremely proactive when it comes to planning enforcement and, providing resources are managed effectively, the extended enforcement window should lead to better planning results.
There are transitional provisions which prevent these new rules from applying where operational development was substantially completed or a breach occurred before the 25th April 2024. These transitional provisions will no doubt be welcomed by developers, who will be ‘off the hook’ for enforcement action where an LPA has not taken action within 4 years and they are able to demonstrate, if any breach is investigated, that any unlawful use started or unauthorised works were substantially completed on or before 24th April 2024. Developers would benefit from banking evidence to demonstrate the above if an enforcement case is opened.
Fines
Greater sanctions are also now on the table for a failure to comply with a breach of condition notice. There will now be no limit to the level of fine that can be imposed by an LPA where a breach of condition notice is disregarded (section 187A TCPA 1990). The uncapped fine should act as a significant deterrent against unlawful development and encourage developers to think twice before ignoring or not properly adhering to enforceable planning conditions.
Temporary Stop Notices
Further strengthening LPA enforcement powers, an LPA will now have longer to temporarily halt an ongoing breach of planning control whilst it investigates a suspected breach.
LPAs will be able to issue a temporary stop notice (prohibiting the further carrying out of an activity giving rise to a breach) having effect for 56 days (rather than 28 days) from the date the notice is displayed on the relevant land. The changes will be introduced through amendments to section 171E of the TCPA 1990. Transitionary provisions apply.
Consistent with the above, amends to the Listed Building Act will mean LPAs in England will now also be able to issue a 56-day temporary stop notice where they suspect unauthorised works have been carried out to a listed building. It will be a criminal offence to contravene such a notice.
Enforcement Warning Notices
Where an LPA considers that there is a reasonable prospect that unauthorised development would be granted planning permission if an application were made, an LPA has a new power to issue an ‘enforcement warning notice’ (“EWN”) requiring a developer to submit a planning application within a specified time period. The notice will state that if an application is not made within the prescribed timeframe, then further enforcement action may be taken (section 172ZA TCPA 1990).
It is envisaged that such notices will be issued by LPAs where the development in question appears in principle to accord with planning policy. However, an EWN obviously does not act as a guarantee that planning permission will be forthcoming and where an application is refused, an LPA may then go on to issue a full enforcement notice.
In practice, it is not unusual for LPA enforcement officers to informally invite a retrospective planning application for unauthorised development, with an enforcement notice being issued in circumstances of an absence or refusal of such an application (or, where relevant, after dismissal at appeal). However, the process of informally inviting a retrospective planning application can lead to a risk of breaches of planning control gaining immunity from enforcement action, particularly where an LPA has been late to address a breach. This is due to the time period for enforcement lapsing during the application/determination process. If an application were refused by an LPA (and, where relevant, dismissed on appeal), an LPA would no longer be able to enforce against the breach in those circumstances.
The main benefit derived from EWNs is that they will formally constitute the taking of enforcement action. This means that an LPA serving an EWN will be able to benefit from the provisions in section 171B(4) TCPA 1990. Section 171B(4) enables an LPA to take further enforcement action where it has already taken enforcement action in the preceding 4 years. This means that even if the relevant enforcement period has expired (now 10 years), an LPA will be able take further enforcement action so long as it has previously enforced against the breach during the prescribed enforcement window. EWNs will therefore reduce the likelihood of unauthorised development gaining immunity through the passage of time.
LPAs will be required to update their enforcement register with information relating to any EWNs issued.
Appeals
There are also a few notable changes to the process for enforcement appeals.
The regulations introduce provisions that will reduce the circumstances in which a developer can make an appeal against an enforcement notice on the ground that planning permission should be granted for the development. An appeal on such grounds will be prohibited where the unauthorised development that is the subject of an enforcement notice has already been refused by an LPA and that refusal was appealed to the Secretary of State and the appeal was dismissed. Critically, the enforcement notice must have been issued within 2 years of the relevant appeal decision (section 174 TCPA 1990).
This removes the possibility of a ‘third bite at the cherry’ in terms of gaining consent for unauthorised development. Previously an individual could apply for planning permission, appeal a refusal, then receive an enforcement notice and have another attempt at obtaining planning consent via an appeal of the notice. It will now not be possible to have that third attempt at seeking planning permission.
The Secretary of State also has a new power to dismiss an appeal in relation to an enforcement notice (or an appeal relating to a lawful development certificate) in England where it appears that the appellant is causing undue delay to the appeals process (section 176 TCPA 1990). It will be interesting to see what planning inspectors consider to be ‘undue delay’ and how readily they are willing to exercise their powers of dismissal. In any event, these measures should increase efficiency in the progress of appeals, encouraging quicker decisions and enabling LPAs to realise their enforcement objectives more readily where any enforcement notice is upheld.
Concluding remarks
The changes to the enforcement regime will empower LPAs to manage unauthorised development more effectively in their area and should lead to greater consistency in the realisation of planning (and, where relevant, conservation) objectives. LPAs will now have significantly more time to investigate a suspected breach of planning control, temporarily suspend suspected unlawful activity and to take appropriate action. The reduced scope for appeals and emphasis on efficiency in planning appeals should also enable LPAs to see material results from enforcement action more quickly.
LPAs should consider how to best manage their resources to maximise the benefits to be drawn from the legislative changes and developers will need to be alert to the implications of the strengthened enforcement regime when contemplating and carrying out projects, and when reflecting on works that have already taken place.
Sharpe Pritchard’s planning team is well-placed to advise both LPAs and developers on planning enforcement matters. Please contact a member of our team if you require bespoke advice in relation to the matters raised in this article or a planning enforcement issue more generally.
Rebecca Stewart is an Associate at Sharpe Pritchard LLP.
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