Planning Enforcement – What You Need to Know

This looks at the basics of planning enforcement laws, the key changes introduced by the Levelling Up and Regeneration Act 2023, and the impact of planning enforcement for property stakeholders like Local Authorities, householders, and property investors.

Planning laws are designed to control and manage the development or use of land and buildings in the public’s interest and to address potential planning breaches. Under Section 171a of the Town and Country Planning Act 1990, a breach of planning control is defined as follows:

1. The carrying out of development without the required planning permission; or
2. The failure to comply with any condition or limitation subject to which planning permission has been granted.

Local Authorities have the following options available to tackle breaches of planning control:

1. Planning Contravention Notice
2. Stop Notice
3. Temporary Stop Notice
4. Breach of Condition Notice
5. Injunction
6. Retrospective Planning Application
7. Rights of entry
8. Listed Building Enforcement

On 25^th April 2024, The Planning Act (Commencement No. 8) Levelling-up and Regeneration Act 2023 (Commencement No. 4, and Transitional Provisions) Regulations 2024 brought into effect the new changes to enforcement set out in the Levelling Up and Regeneration Act (LURA) 2023.  These changes are important and worthy of setting out in full:

1. The time period within which local planning authorities can take enforcement action against unauthorised development used to be four years for “operational development” comprising building works or change of use of any building to use as a single dwelling house, and ten years for any other change of use of land or buildings.
2. The new time period within which local planning authorities can take enforcement action (which can be in several forms) is now:

1. Ten years for “operational development” from the date of substantial completion for unauthorised building, engineering, mining, or other operations in, on, over, or under land;
2. Ten years (from the date of the breach) for the unauthorised change of use of any building to use as a single dwelling house and
3. Ten years from the date of the breach for any other breach of planning control.

3. Regulations make provision for enforcement notices that were issued before 24^th April 2024, for applications for Certificates of Lawfulness that were submitted, and appeals made before that date not being caught by the new provisions.  Further, for operations that were substantially completed before that date and for changes of use to a single dwelling house, where the breach occurred before the 24^th of April 2024, they would still be bound by the 4 years rule and the challenge here will be collating the evidence to demonstrate that this is the case.

4. The period to extend this where any breach of development has been concealed remains in effect and essentially means that where a local planning authority believes that a breach of planning control may have been concealed, they can apply to a Magistrates Court for a Planning Enforcement Order.  This application can be made at any time within six months following the date the local planning authority considers it has sufficient evidence to justify such an application.  If such an order is granted by a Magistrates Court, it allows the local planning authority a further “enforcement year” beginning at the end of 22 days from the date the magistrates made the order, to take enforcement action. In a recent case, an Inspector found that there had not been deliberate concealment of a barn. The council in this case had claimed that the appellant had positively concealed the date of substantial completion of the building by putting incorrect dates on an earlier planning application form and in comments that had been made to a planning officer visiting the site. However, the Inspector found that incorrect dates on the application form could invoke the prospect of allegations of false representations, but in this case, it was highly unlikely that the appellant intended to undermine the planning process by deception, the Inspector was satisfied that the incorrect dates had been inserted in error  (Brentwood- Land known as Fantails, Hook End Road, Hook End, Essex). From the decision letter, it appears that the Inspector in the case was satisfied that the overall evidence given by the appellant was precise and unambiguous and not intended to deceive. One can only assume that the appellant was very convincing in their evidence to convince the Inspector to reach their decision and that is why getting the chronology of the events is so critical in these cases.

However, the potential for local authorities to take enforcement action from 25^th April 2024 has been extended substantially and could have serious implications for many landowners and neighbours. We are often asked to advise landowners on their use of the land and highlighting this issue from the start is important and getting the sequence of events as they occurred with supporting evidence is critical.

We take a look at six enforcement cases from 2023 to show the consequent effects of breaches of Planning Control.

The Four-Year Rule and Ten-Year Rule, Russell Street, York, September 2023

An enforcement notice was issued by the City of York Council, alleging a material change of use of the property from a single dwelling house (Use Class C3) to use as four separate flats, appeal reference APP/CC2741/C/22/3300628 19^th September 2023.

The appellant appealed on two grounds: firstly, Ground (a), which is a deemed application for planning permission, and secondly, on Ground (f), that the steps required to comply with the notice were excessive.  The word ‘building’ in Section 171B(2) of the 1990 Act includes any part of a building, flats are dwellinghouses for the purposes of the Town and Country Planning Act 1990 and benefitted from the 4-year rule as opposed to the 10-year rule.  The Inspector held that the Enforcement Notice was invalid due to the reference to the 10 years instead of the 4 years and that correction of the notice was not possible, as correcting the notice would cause injustice to the appellant.

This case serves as a reminder to Councils to properly investigate before serving the appropriate notice, as a failure to do so would lead to the notice being quashed.

Building without Planning Permission, Burley Road, Bournemouth, Christchurch and Poole, November 2023

This is an interesting case as the landowner involved was a Magistrate, and the case highlights the bold and firm actions Councils would take for non-compliant offenders.

Section 57 of the Town and Country Planning Act 1990 provides that planning permission is required for works carried out on any development of land. As per Section 55 of the Town and Country Planning Act 1990, the definition of ‘development’ includes material change of the use of lands and buildings, mining and engineering operations as well as the subdivision of a building (including any part) used as a dwelling house for use as 2 or more separate dwelling houses.

This case took place over 5 years and involved the subdivision of a building into 2 separate dwelling houses without planning permission. The landowner had a detached garage which was lawfully converted into a dwelling house.[1] He later applied for planning permission in February 2016 to extend his building. This was rejected on the basis that it was too large. He applied again and this time, the permission was granted. However, in 2018, it was found that he had built a larger extension than the permission granted. It was also discovered that he had extended another property without planning permission. The Council deemed this a separate dwelling house.

Following this, he applied for a retrospective planning application for both structures. These were refused by the Council and enforcement notices were issued with a deadline of six months to comply. The landowner unsuccessfully appealed against both notices and continued to rent out one dwelling and occupy the extension. The Council prosecuted the landowner for failing to comply with the enforcement notices. The Council subsequently sought a confiscation order under the Proceeds of Crime Act 2002 for profits the landowner made from renting out the dwellings after the Enforcement Notice had come into effect. The Court ordered the landowner to pay £93,000.00 (£77,000.00 confiscation order and £16,000.00 in fines and costs) after pleading guilty to unlawfully extending two properties and renting out one.

This case is a recurring example of local planning authorities using all the powers at their disposal to ensure that offenders of development control do benefit from such actions, and this is another example in a long list of such cases with substantial orders being made.  

Unlawful Mixed-Use Operation – Bruce v Wychavon District Council [2023] EWCA Civ 1389 (24 November 2023)

This case study centres on the mixed-use operation on a landowner’s land which led to a 12-month custodial sentence being imposed. This landowner had a history of not complying with court orders about activities undertaken on his site for almost a decade.[2]

In December 2014, Wychavon District Council issued an enforcement notice in respect of works on a site near Pershore in Worcestershire. The notice required the site owner to cease the “mixed use of the land” by halting the operation and storage of machinery and the “importing, storing and burning [of] waste materials”. It also required the landowner “to remove from the land unauthorised agricultural machinery, hard standings and bunds, and reinstate the land to its former condition, namely grassland”. However, he did not comply with the notice issued in 2014.

The Council subsequently sought an injunction preventing him from using the land “otherwise for agriculture” and “further restraining him from undertaking development unless authorised by the grant of planning permission”, the injunction was granted.

The landowner failed to comply with the injunction and therefore the High Court found him to be in contempt of court. A 12-month suspended sentence was imposed, as the landowner had “repeatedly and persistently failed to comply” with the terms of the injunction. The High Court however accepted that the landowner had taken some steps to clean the land. Therefore, the landowner was sentenced to a 28-day custodial term rather than activating the 12-month sentence.

The landowner still did not comply with the injunction. This led to a third trial where he was found to have breached the terms of the injunction. The judge then activated the 12-month suspended sentence and imposed a further 28 days of imprisonment on the landowner. In addition, the landowner was ordered to pay £2,101,708 following a case brought by the Environment Agency under the Proceeds of Crime Act 2002.

This case signifies to landowners that in extreme cases, a custodial sentence can be ordered in enforcement actions. It re-echoes to landowners that it is in their best interests to comply with the terms of the injunctions, as well as actively work with the Council to resolve their matters.

Unlawful Works – Epping Forest District Council and Halama v Courtney and another [2023] EWHC 2906 (KB) (16^th October 2023)

In this case, a High Court Judge granted Epping Forest District Council’s application for an injunction over unlawful works to property. In addition, the owner was also ordered to pay the Council’s costs of around £24,000.00.

The landowner purchased a large semi-detached house with a garden at Russell Road in 1996. In 2015, the landowner applied for planning permission “to make quite modest adjustments” to his home, in particular, a loft conversion and a single-story rear extension. The landowner then applied for wider planning permission to build an extension on the flat roof of the garage, a wider dormer window, and a deeper rear extension. The landowner went ahead with the large-scale development before the application was determined and the Council subsequently refused the application. Unfortunately, the landowner had already built the large rear extension and started other works. He later put forward amended plans to address the planning harm; the Council granted planning permission to reflect these proposals.

Nevertheless, he did not make the necessary changes to comply with the new planning permission. An Enforcement Notice was issued which required the whole development that had been built to be demolished except the works covered by the original roof extension permission. The landowner appealed but was unsuccessful and still did not comply with the requirements of the Enforcement Notice. The Council did subsequently grant a sequence of permissions to reflect those parts of the development that were acceptable and which reduced the effect of the Enforcement Notice and its requirements. The majority of the work was now consented but there still remained elements which were subject to the Enforcement Notice which he failed to comply with. The case then followed a sequence of events with a prosecution being brought for the outstanding remaining elements of the Enforcement notice, the landowner agreeing to comply with the outstanding requirements by June 2022, but this was not achieved. This was yet followed by a further application to retain some of the outstanding works which was refused and the Council then applied for the injunction. He subsequently argued that he had financial and health reasons for the failure to comply. Judge Tindal took into account that the outstanding breaches had continued for a period of 5 years, the approach of the Council, the prosecution, the undertaking to the Magistrates Court to carry out the work, the failure to do so and then the injunctive proceedings. He also considered the landowner’s arguments of ill health and financial issues but said there was no evidence before him to consider these and in any event, due to the long history of the matter, that he found that it was necessary and expedient to make the injunction order.

The case demonstrates the length that the local planning authority went to, in assuring that acceptable development was expressly granted consent subsequent to the issue of the Enforcement Notice, the action necessary by the landowner, the importance of providing evidence to support any claims of hardship or personal circumstances and the firm approach of the court with a case that was long and drawn out.

Annex – Stoke Road, Buckinghamshire, June 2023

With increasing family size or having to accommodate older parents, the option to expand or extend one’s dwelling house is attractive and certainly more convenient for all. However, in some circumstances, the expanded or extended premises may be considered as a separate dwelling for which planning permission is required.  Under Part 1, Class E of the Town and Country Planning (General Permitted Development) Order 2015, certain buildings can be erected under “permitted development right”, thereby not needing full planning permission. However, the use of the building must be incidental to the enjoyment of the dwelling house. Appeal reference APP/J0405/W/22/3311103 9^th June 2023.

In this case, the landowners appealed against a decision by Buckinghamshire Council[3]. The Council had refused their application to demolish the existing carport and erect an ancillary residential annex with associated access, car parking, storage, and landscaping.

One of the issues considered by the Inspector was whether the proposed building would function as an annex to the host dwelling.

The landowners lived in a two-story property with their family; however, the landowner had restricted mobility and required the support of family for day-to-day living.

The proposed building would be located at the front of the main dwelling and would have independent access as well as all the necessary facilities to make it self-contained. The landowners suggested that there would be a functional link with the main dwelling through socialization at mealtimes and household chores like laundry. Furthermore, both buildings would share vehicular and pedestrian access routes, parking areas, and garden space.

The Council’s concern was that the proposed building could be used as an independent dwelling due to the self-contained internal facilities, and the location of the proposed building cemented this argument.

The inspector, arriving at his decision, considered the long-term use of the proposed building as well as its initial occupation. He stressed that the proposed building should retain its original purpose and remain tied to the use of the main dwelling. Therefore, an appropriately worded condition could achieve this. He added that if the structure is not built or used as proposed, or if there is a material change of use in the future to create a separate dwelling, then a separate grant of planning permission would be required.

The turning point in this case was the purpose of the building and the link between the main dwelling and the proposed building.

House in Multiple Occupation (HMO) – Mandela Close, London July 2023

Under the Town and Country Planning (General Permitted Development) Order 2015, planning permission is required for a change of use from a C3 dwelling house to a C4 HMO.

This case study focuses on an alleged HMO breach. The London Borough of Brent issued an enforcement notice.[4] Appeal reference APP/T5150/C/20/3245605 12^th July 2023

The planning breach alleged in the notice was: Without planning permission, the material change of use of the premises to mixed use as an HMO and flats, and the erection of a single-storey extension to the rear of the premises.

The appellant stated that the premises were used entirely as an HMO or, if not accepted, entirely as flats instead, but not a mixed-use. For the HMO license application, the appellant had described the property as a shared house with 5 tenants; all rooms were described as “bedroom with shower/bath” in 2015. However, the Council, in granting the license, described each room as a 1-bedroom self-contained flat, the Council provided no evidence for the re-description.

During the inspection, the inspector found that all 5 rooms comprised living and sleeping areas with a kitchen area and a separate WC/shower room, as well as a separate kitchen on the first-floor level.

At the appeal, the inspector referred to case law in Gravesham BC v SSE & O’Brien [1982], which confirms the distinctive characteristic of a dwellinghouse – its ability to afford the facilities required for day-to-day private domestic existence. Furthermore, it was established that installing something as insubstantial as a microwave or a plug-in hob in a room within a HMO would result in that room becoming a dwellinghouse would equally be a material change of use every time one was removed. Therefore, the presence or absence of an item that may be installed or removed in minutes should not be determinative of whether a material change of use has occurred.

It was established, after a detailed assessment of the facilities in each room/flat, that there was no evidence of a substantial cooking facility being installed and used in any room such that all the facilities necessary for day-to-day private domestic existence were within that room. Furthermore, the Council Officers had failed to produce evidence from site visits or declarations to substantiate the alleged mixed-use. They produced selected evidence, and housing benefit applications and presented inconsistent arguments. They also failed to state whether each of the 5 rooms was in use as a flat or in HMO use. The inspector held that Council Officers’ behaviour was unacceptable, as it amounted to a deliberate misleading of the appeal process.

It was held that the alleged mixed use as HMO and flats had not been instituted in the period running up to and including the date on which the notice was issued given the evidence presented (the transient and insubstantial nature of any cooking facilities or equipment in the 5 rooms since December 2014). Additionally, the inspector awarded partial costs against the Council, as he found that the Council’s behaviour resulted in unnecessary or wasted expense.

This case demonstrates that it is incumbent on Councils to properly establish the breach of development control before issuing enforcement notices for alleged breaches. It also highlights the repercussions of not doing so, as awards can and will be made against the Council.

Our team is very experienced in dealing with developments and change of use cases, both from the public sector point of view and from landowners’ perspective.  If you have any issues that you wish to discuss then please contact a member of our team.

---

[1] Court orders magistrate to pay £93K for renting out property without planning permission | Planning Resource

[2] Court of Appeal upholds landowner’s 12-month prison sentence for illegal site use | Planning Resource

[3] Appeal reference APP/J0405/W/22/3311103 9^th June 2023