Advising on enforcement and appeals

A breach of planning control occurs when a person carries out development without the required planning permission or fails to comply with a condition or limitation granted by that permission.

It is important to know the enforcement options available to the Local Planning Authority where there is an alleged breach of planning control and your rights to appeal.

You are immune from planning enforcement by the Local Planning Authority for breaches of planning control after the following periods have elapsed:

  • Four years since the substantial completion of building, engineering, mining or other operations on the land without planning permission
  • Four years since a change of use of any building, or any part of a building, to use as a single dwelling house (including a failure to comply with a condition or limitation of such kind in a planning permission)
  • Ten years since all other breaches of planning control, including a breach of a condition on a planning permission (except a condition preventing the change in the use of any building to use as a single dwelling house) and an unauthorised material change of use (other than a change of use to a single dwelling house)

A failure to comply with any steps required by an LPA to remedy a breach of planning can become an offence leading to prosecution by the Local Planning Authority and have serious financial implications as well. Our team is experienced in successfully advising on enforcement related matters. If you are the subject of any of the procedures outlined below, you should seek legal advice immediately.

Enforcement

The Local Planning Authority has a range of enforcement options:

  1. Planning Contravention Notice (PCN)

Most enforcement action is prompted by an initial complaint by a member of the public to the relevant Local Planning Authority (LPA), and this in turn commonly prompts the LPA to issue a PCN. A PCN is not itself a form of enforcement. Instead, it is an information gathering exercise, in the form of a notice requiring the owner / occupier of the relevant piece of land to answer a set of questions about the land and its use. The Council will use the information provided in response to the PCN to help it decide whether to embark on more formal enforcement steps.

A failure to respond to a PCN is an offence. If you are in receipt of a PCN, you should seek legal advice. In our experience, if there has been a breach of planning control, it is often possible to ‘regularise’ that breach at this stage, and thereby avoid the costs and risks involved in further enforcement steps.

  1. Enforcement notice

This is the most common of planning enforcement actions. The notice will specify the steps to be taken, within a given time period (the Compliance Period), to do either of the following:

  • Restore land to the condition it was in before the unauthorised development occurred
  • Secure compliance with any conditions or limitations imposed on a planning permission

The notice imposes a continuing obligation on the owner or occupier of the land to comply with the notice until such time as it is formally discharged by the authority.

It is an offence not to do everything that could be expected to secure compliance with a planning enforcement notice once it comes into effect and within the period stated in the notice.

There are seven statutory grounds of appeal to the Secretary of State against an enforcement notice:

  • Planning permission should be granted or the conditions discharged
  • Those matters alleged in the notice have not occurred
  • Those matters alleged in the notice do not constitute a breach of planning control
  • At the date the notice was issued, no planning enforcement action could be taken
  • The notice was not correctly served
  • The steps required by the notice to be taken or to cease exceed what is necessary to remedy any breach of planning control or to remedy any injury or amenity caused by such breach
  • The period specified in the notice falls short of what should reasonably be allowed

Enforcement appeal decisions themselves can only be challenged by way of a judicial review.

Our planning team have a track record of successfully advising on enforcement appeals, as well as on alternative strategies for dealing with alleged breaches of planning control. If you are in receipt of an enforcement notice, you should seek legal advice as soon as possible.

  1. Stop notices

Where and LPA considers it to be expedient for activities carried on in breach of planning to cease, it has the power to serve ether a Temporary Stop Notice or a standard Stop Notice.

A temporary stop notice prohibits immediately activities being carried out in breach of planning control for a limited period while the LPA decides whether to take planning enforcement action. Once the limited period has expired, the LPA cannot serve a further stop notice without starting formal enforcement proceedings.

A standard stop notice prohibits activities being undertaken in breach of planning control on land that is subject to a planning enforcement notice, and will be served if the LPA considers it expedient that any “relevant activity” should cease before the end of the Compliance Period referred to in the planning enforcement notice.

The standard stop notice only takes effect from the date specified in the notice, which can be immediate but is usually between 3-28 days. Neither a temporary nor a standard stop notice can be used to stop the use of a building as a dwelling house or any activity that has been carried out, continuously or not, for more than four years.

The stop notice will be registered on the planning register, and non-compliance is an offence.

A person affected by either a Temporary Stop Notice or the more standard Stop Notice can make representations to the LPA. There is no right of appeal to the Secretary of State against either form of stop notice, although their validity may be challenged by judicial review.

The recipient of a temporary or standard stop notice can recover compensation from the LPA in a range of circumstances, including where the stop notice is withdrawn. If you are in receipt of either form of stop notice, you are strongly advised to seek legal advice.

  1. Breach of condition notice (BCN)

If a planning condition is breached, the LPA can serve a breach of condition notice requiring the recipient to remedy the breach of planning condition within a specified period. The period for compliance must not be less than 28 days from the date of service of the breach of condition notice. The notice will appear on the planning register.

A BCN is a relatively simple step for an LPA who believe that there has been a breach of condition  but, for the recipient, it can be draconian. There is no right of appeal to the Secretary of State and it is a criminal offence not to comply with the requirements of the notice. The validity of the breach of condition notice can only be the subject of judicial review.

If you are notified that a LPA is minded to serve a BCN on you, or you are in receipt of a BCN you should seek immediate legal assistance.

  1. Confiscation orders

If you are convicted of a criminal offence of non-compliance of any of the notices for planning enforcement, then a confiscation order may be made against you to allow the LPA to recover any sum equal to the financial benefit you earned from the conduct concerned (Proceeds of Crime Act 2002). Such powers apply only to financial gains over £5,000.

  1. Injunctions

An injunction involves an application to the County Court or High Court for an injunction to restrain an actual or apprehended breach of planning control. The council can apply for an injunction regardless of whether it has already used other planning enforcement mechanisms.