Enforcement of Planning Control

AuthorWilliam Webster/Robert Weatherley
Pages485-500
Chapter 47


Enforcement of Planning Control

INTRODUCTION

47.1 It should be understood that being in breach of planning control1is not a criminal offence. It is only when enforcement action2is taken by an 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.

WHEN MIGHT FORMAL ENFORCEMENT ACTION NOT BE APPROPRIATE?

47.2 This issue is addressed in the PPG 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.5

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.

4At PPG, reference 17b-011-20140306 (as at 6 March 2014).

5See PPG, starting at reference 17b-012-20140306 (TCPA 1990, s 73A).

486 Restrictions on the Use of Land

TIME LIMITS FOR ENFORCEMENT ACTION6

47.3 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 4 years beginning on the date on which those operations were substantially completed.7

47.4 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 4 years beginning with the date of breach.8

47.5 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.9

47.6 In the case of any other breaches of planning control,10no enforcement action may be taken after the end of the period of 10 years beginning with the date of breach.11

47.7 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 4 years

6In default of taking enforcement action within the prescribed periods (albeit 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.

7TCPA 1990, s 171B(1). See Sage v Secretary of State for the Environment, Transport and the

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

8TCPA 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 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.

9Involving relevant demolition within the meaning of TCPA 1990, s 196D.

10In 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 10 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.

11TCPA 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 10 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 10 years in order to give rise to immunity.

ending with that action being taken, the LPA has taken enforcement action in relation to that breach.12

TIME LIMITS IN CASES OF CONCEALMENT – PLANNING ENFORCEMENT ORDERS

47.8 Because of the risk that persons may take advantage of their own actions in concealing breaches of planning control, with effect from 6 April 2012 a new procedure has been introduced enabling LPAs to take enforcement action once the ordinary periods for doing this have elapsed.13The 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 magistrates’ court for a ‘planning enforcement order’.14If an order is made,15enforcement 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),16and 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.

47.9 This procedure requires the LPA to apply for a planning enforcement order within a period of 6 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.17In 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),18the court must be satisfied, on the balance of probabilities: (a) that the apparent breach has (to any extent) been deliberately concealed; and (b) the court considers it just to make the order having regard to all the circumstances.19

12TCPA 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).

13TCPA 1990, ss 171BA–171BC.

14TCPA 1990, s 171BA(1).

15TCPA 1990, s 171BA(2).

16TCPA 1990, s 171BA(4).

17TCPA 1990, s 171BB(1). For these purposes, a certificate signed on behalf of the LPA and stating the date on which evidence sufficient in the authority’s opinion to justify the application came to the authority’s knowledge, will be conclusive evidence of that fact (see s 177BB(2)). See also s 171BB(4) for the provisions dealing with service of an application for a planning enforcement order and particulars as to the persons entitled to appear before, and be heard by, the court hearing the application.

18TCPA 1990, s 171BC(2).

19TCPA 1990, s 171BC(1).

488 Restrictions on the Use of Land

POWERS (OTHER THAN AN ENFORCEMENT NOTICE OR A STOP NOTICE20) AVAILABLE TO A LOCAL PLANNING AUTHORITY TO DEAL WITH ENFORCEMENT

Planning contravention notice

47.10 This is a procedure whereby an LPA may gather all manner of information 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.21It 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 comply with any requirement of the notice.22

It is also an offence to give false or misleading statements.23It is a defence for a person to prove that he had a reasonable excuse for failing to comply with any requirement of...

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