Householders and developers need to be aware of changes to the planning enforcement regime that are due to come into effect at the end of April 2024.
To date, there have been two different time limits by which local planning authorities had to take enforcement action against breaches of planning control:
- 4 years where the breach involved unauthorised building or other operations or where it involved an unauthorised change of use of any building to use as a single dwelling house, and
- 10 years for any other breach,[1] such as a breach of condition or some other material change of use.
If no action was taken within these time limits, then the breach became immune from enforcement and lawful.
Following the grant of Royal Assent for the cumbersomely named Levelling-up and Regeneration Act 2023 (LURA2023), and subject to the important transitional arrangements summarised below, as of 25 April 2024[2] and in England only, the time limits for enforcing against breaches of planning control will be unified at 10 years.
Other LURA2023 enforcement innovations which will come into force on the same day include:
- a prohibition on running a ground (a) appeal against an enforcement notice (i.e. “that in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned out to be discharged”), if a planning application for whatever is specified in the enforcement notice has already been made and is under consideration, or if within the previous two years such an application has been refused or granted subject to conditions and
- Unlimited fines for failure to comply with a breach of condition notice. This brings the penalties for failure to comply with a breach of condition notice in line with the unlimited fines for a failure to comply with a planning enforcement notice.
The Government’s justification for tightening the planning enforcement regime is that “effective enforcement action is important to maintain public confidence in the planning system”. Householders who welcome the extended opportunity to lobby against the planning indiscretions of their neighbours may well change their minds when it comes to selling their own houses. It is not uncommon for householders to discover at that point, that some apparently minor improvement to their home (such as that large porch, rear extension or garden fence) in reality required an express planning permission which they failed to obtain. Currently, most such problems are resolved, because the works are more than four years old. In the future, more sellers are likely to have to take out indemnity insurance to cover the purchasers’ potential costs of dealing with any late enforcement.
As regards the wider development industry, there is concern that the extended enforcement period may simply mean that already short-staffed local authorities delay enforcement action.
The transitional provisions in the Planning Act 2008 (Commencement No. 8) and Levelling-up and Regeneration Act 2023 (Commencement No. 4 and Transitional Provisions) Regulations 2024 (the 2024 Regulations) mean that the extended enforcement deadlines do not apply where before 25 April 2024
- Any allegedly unauthorised operational development (i.e. built development) has already been substantially completed or
- In respect of a change of use of a building to use as a single dwelling, that change of use has already taken place (2024 Regulations, Article 6).
In addition, the prohibition on a ground (a) appeal against an enforcement notice does not apply where the enforcement notice was issued before 25 April 2024.
With those transitional provisions in mind, it is important to understand when a building is ‘substantially complete’.
Substantial Completion
How complete does a building need to be to be ‘substantially complete’? This is a classic question of ‘fact and degree’, to be decided on the particular facts of the case. However, some guidance is provided in the leading case of Sage[3] and subsequent planning cases.
In Sage Lord Hope in a supporting judgement explained that “regard should be had to the totality of the operations which the person originally contemplated and intended to carry out”. If the developer has “stopped short of what he contemplated and intended … the building … can properly be treated as an uncompleted building against which the four-year period has not yet begun to run”.
Assessing what the developer intendeds is an objective exercise based on evidence from “various sources, having regard especially to the building’s physical features and its design”. Giving the leading judgement, Lord Hobhouse explained that:
“The character and purpose of a structure falls to be assessed by examining its physical and design features … The actual use made of the building does not alter the answer to be given. Keeping a pig in the sitting-room or hens in the kitchen does not turn a dwelling house into an agricultural building even if the humans move out”.
The case of Sage concerned a building constructed over several years in the countryside. The building had cavity walls clad externally in tiles, the ground floor was unfinished rubble, there was a second floor (albeit without a staircase), the entrance door and window openings (unglazed) were typical of a house, and no wiring or plumbing had yet been installed. The developer claimed the building was agricultural. However, given the design, the court upheld an inspector’s finding that the building comprised a “dwelling in the course of construction”.
The developer then argued that as the shell of the building was complete, the remainder of the works were all internal and did not require planning permission[4] and that therefore the four-year immunity period ran from the date that the shell was completed. This argument was rejected on the basis that the s. 55(2(a) exemption required a completed building as a starting point. In Sage the building was clearly incomplete. Hence, the remaining works to complete the dwelling fell outside the s. 55(2)(a) exceptions.
Sage is a relatively straight forward case. Once it was understood that the building was designed as a dwelling house, it was obvious that it had not reached a stage of substantial completion. The issue is less clear cut in more advanced builds. However, more recent planning appeal cases provide some guidance.
The key characteristic of a dwelling house is “its ability to afford to those who use it the facilities required for day-to-day private domestic existence”[5]. Hence, if such facilities have not yet been installed, it is unlikely that the building will be substantially complete. Two enforcement appeal cases illustrate the point:
- In the case of 3 High Street Pointing[6], the presence of a temporary staircase to the first floor and the lack of internal wiring and plastering meant that the building remained ‘in the course of construction’, and therefore open to enforcement.
- By contrast in the enforcement case of Lambside Corner Cottage[7] (a case concerning an unauthorised, new-build holiday let), the fact that the internal electrics, plumbing and most (but not all) of the internal decoration had been completed (although the building was not fully furnished, and solar panels remained to be installed) was enough to persuade an inspector that the house had been ‘substantially completed’ at the relevant date, and was therefore immune from enforcement.
NB: much of the case law on what constitutes ‘substantial completion’ relates to buildings intended to be dwellings. However, ‘substantial completion’ must always be assessed bearing in mind the actual character of the building. As Lord Hope noted: “[i]f it is shown that all the developer intended to do was to erect a folly, such as a building which looks from a distance like a complete building — a mock temple or a make-believe fort, for example — but was always meant to be incomplete, then one must take the building when he has finished with it as it stands. It would be wrong to treat it as having a character which the person who erected it never intended it to have”.
Buckles Solicitors have experience of advising developers in enforcement cases. If you have any queries about either the revised immunity periods under the LURA2023 or about whether or not a building is ‘substantially complete’, feel free to contact the team.
[1] Other than the unauthorised demolition of an unlisted building within a conservation area, where there is no time limit. NB there is also no time limit for enforcement against breaches of listed building control under the Listed Building and Conservation Areas Act 1990.
[2] By virtue of Article 3 of the Planning Act 2008 (Commencement No. 8) and Levelling-up and Regeneration Act 2023 (Commencement No. 4 and Transitional Provisions) Regulations 2024
[3] Sage v Secretary of State for the Environment, Transport and the Regions [2003] UKHL 22
[4] Town and Country Planning Act 1990 s. 55(2)(a) exempts from the need for planning permission works of maintenance, improvement or other alteration of any building which affect only its interior or do not materially affect its external appearance.
[5] Gravesham Borough Council v Secretary of State for the Environment (1984) 47 P. & C.R. 142
[6] Ref APP/E2530/C/12/2188351
[7] APP/K1128/C/12/2178502
