Planning enforcement, whether we like it or not, plays an important role in how our communities take shape, impacting everyone. Whether you're in the heart of a city or surrounded by rural landscapes, understanding how planning rules work is key to making sure guidelines are followed, and development is carried out legally, safely and in the best interests of the public.
In this article, we'll take a closer look at the planning enforcement rules and responsibilities, including what could happen if there was a breach of planning control. Let’s begin!
What is a breach of planning control?
A breach of planning control, as governed by the Town and Country Planning Act 1990, happens when:
Development occurs without the planning permission that is needed.
There is a failure to meet or follow the conditions or any limitations set out in the planning permission that has been granted.
If you break the rules in permitted development rights, as laid out in the Town and Country Planning (General Permitted Development) (England) Order 2015, this is seen as a breach of planning control and can lead to legal prosecution, costing you in more ways than one.
Who can take enforcement action following a breach of planning control?
When it comes to enforcement action powers following a breach of planning control, the local planning authorities are responsible for taking action in the public interest within their areas.
Local authorities and the police have lots more powers that go beyond just planning, to ensure the well-being and high standards of housing. From setting and enforcing housing standards, dealing with illegal encampments, using powers to tackle empty homes, and enforcing health and safety rules, it is well worth being in the know about what local authorities have the permission and ruling hand over.
What enforcement action can be taken following a breach of planning control?
When a breach of planning control happens, local planning authorities have the power to take a variety of different enforcement actions which can include:
Enforcement notice: The most common form of enforcement action - it outlines the breach and details the steps required to fix the problem. This could mean stopping certain activities, removing any structures that haven’t been authorised, or returning the land to its previous state.
Stop notice: A stop notice can be issued to immediately stop any ongoing development or use of the development that is in breach of planning control. It is normally used in urgent situations where immediate action is needed.
Breach of condition notice: If a development has ignored or gone against the conditions attached to a planning permission, a breach of condition notice may be issued. This notice sets out what hasn’t been followed and again, the necessary steps to put it right.
Injunction: In more serious cases or when other enforcement measures are not effective, the local planning authority may seek to get a court injunction. This legal action can force the responsible party to stop the unauthorised development or use.
Prosecution: Legal proceedings may be taken in cases where serious or persistent breaches happen. Prosecution can result in fines or other penalties issued by the courts.
In some circumstances, the local authority may take direct action to put the breach right themselves. The money it costs them to do this would in most cases be taken from the landowner or responsible party - so it doesn’t mean you would be off the hook!
Of course, enforcement action always depends on the nature and severity of the breach. Before taking any action, authorities should consider negotiation, informal resolution, or the opportunity for the responsible party to submit a retrospective planning application as an alternative.
Property owners and developers are in most cases given an opportunity to address the breach voluntarily before formal enforcement measures are taken.
What are the time limits for taking enforcement action?
In most cases, a development is protected from enforcement action if there's no action taken:
Within 4 years of finishing significant building work.
Within 4 years for turning a place into a single home without permission.
Within 10 years for any other planning breach (like changing how a place is used).
These rules are detailed in section 171B of the Town and Country Planning Act 1990. But, in certain situations, action can still be taken after these time limits.
If there was a previous enforcement action within 4 years for the same problem, there can be another round of action (known as "second bite"). Ouch!
If someone purposely hides a planning breach, local planning authorities can get a special order to act after the time limits.
If someone hides a breach on purpose, the time limits don't start until the problem is found.
So, if someone is hiding a breach on purpose, the local planning authority can decide to issue an enforcement notice after the usual time or request a special order. The choice will depend on the specific situation.
Is there a public register of enforcement action?
Yes, local planning authorities have to keep a record of enforcement action and stop notices, as stated in section 188 of the Town and Country Planning Act 1990 and article 43 of the Town and Country Planning (Development Management Procedure) (England) Order 2015. This is a public register, and so it is available to find and be read by anyone.
Details of enforcement notices, stop notices, breach of condition notices and planning enforcement orders should be recorded on the register as quickly as possible.
Can planning breaches be addressed without formal action?
This is always one of the main questions that crops up, and the answer to this is yes, local authorities can take no formal action, also known as informal action, which is quick and cost effective. This might happen if a breach of control was a genuine mistake and once the property owner was made aware of the breach, they went about fixing the problem quickly.
Local authorities will assess each case, and decide on the best way to take things forward, with the public interest at the heart of the decision. Authorities should avoid taking formal action where there has been a trivial or technical breach of control, which doesn’t cause any harm or adverse impact on the development or area around it.
When the development is acceptable on its planning merits and taking formal action would be to simply regularise it, or when they decide that a retrospective planning application is the best way to address the situation, formal action should always be avoided.
Local authorities have to keep a record of any informal action they have carried out.
What are retrospective planning applications?
A local planning authority can ask for a retrospective application. A retrospective planning application is a formal request sent to a local planning authority after development has already taken place without having the right planning permission. In other words, it's an application asking permission for a development that has already been completed or started without the right approval.
If the local authority believes that submitting an application is the right way to sort things out, the landowner or occupier should be invited to apply as soon as possible, as directed by section 73A of the Town and Country Planning Act 1990.
However, don’t jump for joy just yet. Just because the authority asks for an application, it doesn't guarantee permission will be granted - they will make a decision based on the merits of the case and relevant planning policies. As well as this, an enforcement notice could still be issued for other parts of the development.
What are the restrictions on retrospective applications?
If someone has started developing without permission, they only get one chance to do a retrospective planning application.
In addition, if an enforcement notice has been issued before, the local planning authority might choose not to review a retrospective planning application, as per section 70C of the Town and Country Planning Act 1990. And, if an enforcement notice is given while the retrospective application is being considered, an appeal cannot be made.
What is a planning contravention notice?
A Planning Contravention Notice (PCN) is an official document sent by the local planning authority if they suspect there's a breach of planning rules on a property. The notice gives the local authority permission to find out, or ask the property owner to give them details about how the land or property is being used and developed.
This information helps the authority figure out if there's a planning violation and decide on any enforcement actions needed.
If you are issued a PCN, the local authorities are inviting you to respond to the breach, and about how you will go about fixing the issue, so you must reply truthfully and on time, as not doing so can lead to legal consequences.
When is a planning contravention notice used?
A planning contravention notice is used by the local planning authority when they think there has been a breach of planning rules. It is used to help them get more information before deciding on enforcement action. It's not meant for a broad investigation, just to confirm activities on a piece of land.
This is an optional process, and the authority doesn’t have to issue this notice before deciding on enforcement actions. It also can't be used for suspected breaches related to listed building control, hazardous substances control, or protected trees.
The planning contravention notice doesn't have to be recorded in the authority's register of notices either, and it doesn't create a legal claim on the land.
What does an enforcement notice do?
An enforcement notice should make it clear to everyone who gets a copy exactly what the local planning authority thinks is the breach of planning rules and what actions or activities are needed to fix the breach.
The notice must also include information on how to appeal, as provided by the Planning Inspectorate. Each copy of the notice should have an Explanatory Note with details specified in the Town and Country Planning (Enforcement Notices and Appeals) (England) Regulations 2002.
An enforcement notice should use simple language, and avoid complicated legal terms, because if the notice is too complex for the average person to understand, it could lead to problems if there is a legal case under section 179 of the Act.
A local planning authority may choose not to demand action for the entire breach of planning rules. This is called "under enforcement."
If an enforcement notice points out a violation that could have led to removing buildings or stopping an activity but instead lays out less severe actions, and all the listed actions are completed, then planning permission is considered granted for the remaining operations or use, as per section 173(11) of the Town and Country Planning Act 1990.
Whether a notice "could have" demanded something depends on how the breach of planning rules is described in the notice.
Here is an example enforcement notice, as provided by Gov.uk.
Can you appeal against an enforcement notice?
Anyone with an interest in the land mentioned in an enforcement notice, or those occupying the land under a licence, has the right to appeal against an enforcement notice. The appeal must be submitted before the enforcement notice takes effect, usually within 28 days from the notice's issue date.
According to section 174(2) of the Town and Country Planning Act 1990, an appeal can be made based on the following grounds:
Planning permission should be given or the condition/limitation should be removed - however an appeal under this ground is not allowed if a related planning permission application was made, and the enforcement notice was issued before determining the application.
The events mentioned in the enforcement notice didn't happen.
The events mentioned, if they happened, don't break planning rules.
No enforcement action could be taken when the notice was issued.
Copies of the enforcement notice were not served as required by law.
The actions or activities required by the notice are more than necessary to fix the breach or address any harm to the surroundings caused by the breach.
The specified period in the notice is unreasonably short.
If an appeal ground is communicated unreasonably, even if it is later withdrawn, it might result in claims for costs if it causes unnecessary expense for the local planning authority.
What happens if you don’t comply with an enforcement notice?
If you don’t comply with an enforcement notice after the given time and with no appeal, it is a serious offence.
If convicted, the person can face an unlimited fine. The court looks at any financial gains from the offence when deciding the fine, under section 179 of the Town and Country Planning Act 1990. So, authorities must be ready to share details about any money earned or expected from the offence.
If a local planning authority successfully prosecutes someone for not complying with an enforcement notice, they can apply for a Confiscation Order under the Proceeds of Crime Act 2002. This order allows them to get any money back that has been gained through the unauthorised development.
So, it goes without saying, ignoring an enforcement notice is just not an option!
What powers of enforcement do local authorities have?
The local planning authority can go onto land that has been highlighted in an enforcement notice and carry out the required actions themselves, if the owner or occupier doesn't follow the orders given. If the owner tried to stop this process from happening, it is a legal offence.
These powers are only used when other methods fail to convince the landowner to follow the enforcement notice. The authorities can also ask the landowner to cover the costs that they have spent on putting the issue right during this process.
As well as these powers, the local planning authority can take legal action, including prosecution, if someone doesn't do what they have been asked to in an enforcement notice.
What is a planning enforcement order?
If someone hides an unauthorised development on purpose, authorities might not know about it until after the allowed time for enforcement action has passed, as per section 171B of the Town and Country Planning Act 1990. In these cases, a planning enforcement order allows authorities to take action for a possible breach of planning rules, even if the time limits are over.
The application for the order can be made within 6 months from the date the local planning authority became aware of enough evidence for the apparent breach. An authorised officer must confirm this date with a signed certificate, which is considered conclusive proof.
The application is submitted to a magistrates' court, and a copy is shared with the land's owner, occupier, and anyone else with an interest in the land that, in the opinion of the local planning authority, would be significantly affected by the enforcement action. The applicant and others served with the application, along with anyone the court believes has a material interest in the land, have the right to appear before and address the court hearing the application.
What evidence is needed for a planning enforcement order?
For a local planning authority to request a planning enforcement order, they must have strong evidence of a potential breach of planning rules, covered in sections 171BA, 171BB, and 171BC of the Town and Country Planning Act 1990.
A court can issue a planning enforcement order only if it's convinced, based on the available evidence, that someone deliberately hid a breach of planning rules.
This order is reserved for serious cases where there's clear proof that the developer took active steps to hide the unauthorised development, not just by keeping it from the local planning authority. These orders are meant for the most serious situations where concealment has occurred.
What happens after a planning enforcement order is issued?
After a planning enforcement order is issued, the local planning authority will take action against a breach of planning rules or related matters during the "enforcement year." This means they can enforce rules at any time during that year.
The enforcement year starts after 22 days from the court's decision to issue the order, the final dismissal of any appeal against the order, or withdrawal of the appeal.
Even if the usual time limit for enforcement hasn't passed, the local planning authority can apply for an order. This flexibility is useful when evidence emerges close to the time limits, making it hard to issue an enforcement notice promptly or when there's uncertainty about the expiration date, like when the substantial completion date is unclear.
After the enforcement year ends, the local planning authority can still enforce rules if the regular time limits haven't expired, as per section 171BA of the Town and Country Planning Act 1990.
What is a stop notice?
A stop notice has the power to forbid any or all of the activities that make up the suspected breach(es) of planning rules mentioned in the enforcement notice. This can happen before the deadline set for compliance in the enforcement notice, under section 183 of the Town and Country Planning Act 1990.
A stop notice cannot be issued on its own however; it must be linked to an enforcement notice.
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