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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 of 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.
- 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 material change of use (other than a change of use to a single dwelling house); continuing breach of condition (except a condition preventing the change in the use of any building to use as a single dwelling house).
The local planning authority has the following enforcement options:
- Planning 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, 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. The council must:
- Only serve a notice if it is expedient
- Serve the notice on all landowners and occupiers, and any party with a material interest in, the land the subject of the notice
- Served the notice within 28 days of its issue and at least 28 days before the date for compliance
- Register the notice in its planning register
It is an offence not to do everything that could be expected to secure compliance with a planning enforcement notice. You can appeal against a planning enforcement notice to the Secretary of State but it must be filed before the planning enforcement notice comes into effect. If an appeal is made against the notice, then it is suspended and does not come into effect until either the final determination is made or the appeal is withdrawn. This does not prevent the council issuing a stop notice or obtaining a Court injunction.
There are seven grounds of appeal:
- 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
The Secretary of State’s decision may be challenged by judicial review.
- Stop notice
A stop notice prohibits activities being undertaken in breach of planning control on land that is subject to a planning enforcement notice. A stop notice may be served if the council considers it expedient that any “relevant activity” should cease before the end of the compliance period referred to in the planning enforcement notice.
The notice will take effect from the date specified in the notice, which can be immediately but usually between 3-28 days. A stop notice cannot 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 a stop notice can make representations to the council. There is no right of appeal to the Secretary of State against a stop notice although its validity may be challenged by judicial review.
Compensation may be recoverable if the stop notice is withdrawn or the planning enforcement notice:
- Is quashed on appeal on grounds other than that planning permission should be granted
- Is varied so that any prohibited activity ceases to be a “relevant activity”
- Is withdrawn for some reason other than the subsequent grant of planning permission
- Temporary stop notice
A temporary stop notice prohibits immediately activities being carried out in breach of planning control for a limited period while the council decides whether to take planning enforcement action. It takes effect on the date that the notice is displayed on the land and expires a maximum of 28 days later. It may be issued if:
- There has been a breach of planning control
- It is in the interests of the amenity of the area that the activity causing the breach of planning control should stop immediately
A temporary stop notice may not be used to prohibit the use of a building as a dwelling house or any other activity that has been carried out, continuously or not, for more than four years. The notice can only require an activity to cease, or for the level of the activity to be reduced or minimised.
It is an offence not to comply with the notice. A person affected by a notice can make representations to the council. There is no right of appeal to the Secretary of State, although the decision of the council can be judicially reviewed.
Compensation may be recoverable if:
- The activity is authorised by an existing planning permission and any conditions complied with
- The activity is permitted development or permitted under a local development order, neighbourhood development order or mayoral development order
- A certificate of lawfulness of existing use or development is subsequently granted
- The temporary stop notice is withdrawn other than due to the subsequent grant of planning permission
- Breach of condition notice
If there is a planning condition, the local planning authority can serve a breach of condition notice requiring the recipient to remedy the breach of planning condition within a specified time 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.
There is no right of appeal to the Secretary of State. The validity of the breach of condition notice can only be the subject of judicial review. It is a criminal offence not to take all reasonable measures to secure compliance with the requirements of the breach of condition notice.
- 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 council 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.
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, if the council considers it necessary or expedient. The council can apply for an injunction regardless of whether it has already used other planning enforcement mechanisms.