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Enforcement of Planning Control

Document Cited authorities 42 Cited in Related
Vincent
AuthorWilliam Webster
Pages297-323

Chapter 14


Enforcement of Planning Control

INTRODUCTION

14.1 It should be understood that being in breach of planning control1is not a criminal offence. It is only when enforcement action2is taken by a local planning authority (LPA) to combat development which has taken place without the required planning permission or in breach of any condition or limitation subject to which planning permission has been granted3that criminal proceedings may be instituted against the offender. This chapter deals with the various steps which may be taken to prevent actual or threatened breaches of planning control, including enforcement action, and the periods within which enforcement action must be taken.

14.2 It is thought that in most cases people will cease acting in breach of planning control when they are threatened with enforcement action by the local authority which has a statutory duty to investigate breaches. Whether steps are taken to enforce any breach is a matter for the discretion of the authority, which is bound to have to prioritise its resources. However, there does appear to have been change since authorities started using the Proceeds of Crime Act 2002 to claw back benefits accrued from breaches of planning control such as arise in the case of unauthorised sub-division of residential property.

1TCPA 1990, s 171A, for the meaning of what constitutes: (a) a breach of planning control; and
(b) taking enforcement action.

2Meaning (principally) the issue of an enforcement notice (defined in TCPA 1990, s 172) or an enforcement warning notice (defined in s 173ZA) or the service of a breach of condition notice (defined in s 187A).

3In the case of permitted development, under a development order.

298 Planning Law: A Practitioner’s Handbook

WHEN MIGHT FORMAL ENFORCEMENT ACTION NOT BE APPROPRIATE?

14.3 This issue is addressed in the National Planning Practice Guidance (NPPG) in the section ‘Ensuring Effective Enforcement’.4Although the guidance does not condone a wilful breach of planning control, it is suggested that enforcement action should be proportionate to the breach of planning control to which it relates, and taken when it is expedient to do so. It is suggested that in deciding what is the most appropriate response to a breach of planning control, an LPA should usually avoid taking enforcement action where: (a) there is only a trivial or technical breach of control which causes no material harm or adverse impact on the amenity of the site or the surrounding area; (b) where the development is acceptable on its planning merits and formal enforcement action would solely be to regularise the development; and (c) where, in its assessment, the LPA considers that an application for retrospective planning permission is the appropriate way forward to regularise the situation as, for example, where planning conditions may need to be imposed.

TIME LIMITS FOR ENFORCEMENT ACTION5

14.4 Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land (i.e. unauthorised operational development), no enforcement action may be taken after the end of the period of four years beginning on the date on which those operations were substantially completed.6

14.5 Where there has been a breach of planning control consisting in the change of use of any building to use as a dwelling-house, no enforcement action may be taken after the end of the period of four years beginning with the date of breach.7

4NPPG at Paragraph 011: Reference ID: 17b-011-20140306.

5In default of taking enforcement action within the prescribed periods (subject to the rules on concealment), the right to take such action in relation to the breach of planning control lapses and the development or existing use will be lawful provided it does not infringe any breach of condition notice or enforcement notice then in force. See TCPA 1990, s 174(2)(d), where it is a defence to an enforcement notice that at the time when the notice was issued, no enforcement action could be taken in respect of the breach of planning control.

6TCPA 1990, s 171B(1). See Sage v Secretary of State for the Environment, Transport and the

Regions [2003] UKHL 22, [2003] 1 WLR 983.

7TCPA 1990, s 171B(2). This provision applies to the unauthorised sub-division of a single dwelling-house into two or more separate dwelling-houses (which will be a question of fact and degree) (see Doncaster Metropolitan Borough Council v Secretary of State for the Environment [2002] EWHC

Enforcement of Planning Control 299

14.6 There is no restriction on when enforcement action may be taken in relation to a failure to obtain planning permission for the demolition of certain buildings in conservation areas in England.8

14.7 In the case of any other breaches of planning control,9no enforcement action may be taken after the end of the period of ten years beginning with the date of breach.10

14.8 The foregoing time limits do not prevent: (a) the service of a breach of condition notice if an enforcement notice in respect of the breach is already in force; or (b) taking further enforcement action if, during the period of four years ending with that action being taken, the LPA has taken enforcement action in relation to that breach.11

TIME LIMITS IN CASES OF CONCEALMENT – PLANNING ENFORCEMENT ORDERS

14.9 Because of the risk that persons may take advantage of their own actions in concealing breaches of planning control, with effect from 6/4/2012 a new procedure enables LPAs to take enforcement action once the ordinary periods for doing this have elapsed.12The position now is that where it appears to the LPA that there may have been a breach of planning control, it may apply to a

808 (Admin); Van Dyck v Secretary of State for the Environment (1993) 66 P & CR 61); Arun District Council v First Secretary of State [2006] EWCA Civ 1172, [2007] 1 WLR 524.

8Involving relevant demolition within the meaning of TCPA 1990, s 196D.

9In other words, all breaches of planning control, other than in cases involving unauthorised operational development or the unauthorised change of use of any building to use as a dwelling-house, must be brought within ten years of the date of breach. This will include breaches of planning control involving unauthorised changes of use or a breach of any condition subject to which planning permission was granted.

10TCPA 1990, s 171B(3). In Thurrock Borough Council v Secretary of State for the Environment,

Transport and Regions [2001] JPL 1388, it was held that a material change of use of land amounting to a breach of planning control lasted for a period of ten years if the use was continuous throughout that period. Whilst a short period of inactivity could not amount to a cessation of the unlawful activity, longer periods could, and cessation of the unlawful use merely constituted compliance with the law. In other words, significant periods of disuse will not count towards the rolling period of ten years in order to give rise to immunity.

11TCPA 1990, s 171B(4). As where an LPA has withdrawn an earlier enforcement notice in relation to the same breach of planning control (see Jarmain v Secretary of State for the Environment, Transport and Regions (No 1) [2000] JPL 1063, where the court held that the words ‘that breach’ in s 171B(4)(b) referred to the physical situation on the land and that whilst the section could not be used to cover two different developments, it could be used to cover the same actual breach, which had been described in two different ways).

12TCPA 1990, ss 171BA–171BC.

300 Planning Law: A Practitioner’s Handbook

magistrates’ court for a ‘planning enforcement order’.13If an order is made,14enforcement action may be taken in respect of the apparent breach in the period of one year commencing at the end of 22 days beginning with the date of the order (or later date if there is a legal challenge),15and it is immaterial that the ordinary time limits for taking enforcement action may have expired, nor will it prevent the taking of enforcement action after the end of the year within which such enforcement action may be taken.

14.10 This procedure requires the LPA to apply for a planning enforcement order within a period of six months beginning with the date on which evidence of the apparent breach of planning control sufficient in the opinion of the LPA to justify the application came to the authority’s knowledge.16In making a planning enforcement order (which must identify the apparent breach of planning control to which it relates and the date on which the court’s decision was given),17the court must be satisfied, on the balance of probabilities: (a) that the apparent breach has (to any extent) been deliberately concealed; and (b) that the court considers it just to make the order, having regard to all the circumstances.18

POWERS AVAILABLE TO A LOCAL PLANNING AUTHORITY TO DEAL WITH ENFORCEMENT

Planning contravention notice

14.11 This is a useful investigative power whereby an LPA may gather any information they want for enforcement purposes from the owner or occupier of the land or whoever is carrying out operations on the land or who is using it for any purpose, where it appears to it that there may have been a breach of planning control, and can be a step which may lead to enforcement action.19It is a criminal offence for any person on whom a planning contravention notice has been served to fail, after the end of the period of 21 days beginning with the day of service, to

13TCPA 1990, s 171BA(1).

14TCPA 1990, s 171BA(2).

15TCPA 1990, s 171BA(4).

16TCPA 1990, s 171BB(1). For these purposes, a certificate signed on behalf of...

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