Part 2: Enforcement
As part of our series on the key provisions within the Levelling Up and Regeneration Bill (“the Bill”), this blog examines some of the newly touted amendments to the current regime of planning enforcement in England.
The most reported on of these amendments is the extension to the time limits in which a Local Planning Authority (“LPA”) may enforce against breaches of planning control. After such period of time, the breach is deemed lawful in planning terms.
The current limitation periods are split into two categories of four years and ten years respectively:
- Operational development: four years from substantial completion
- Change of use to a dwellinghouse: four years
- In the case of any other breach of planning control (e.g. breach of condition or other change of use): ten years
The Bill proposes to undo this imbalance by imposing one holistic limitation period of ten years.
Some may see this as a welcome and assertive attempt to clamp down on unauthorised development which has escaped enforcement, and the evidential burden on those attempting to meet the extended threshold will certainly be increased. However, four years is generally considered an acceptable period by which a person may have established their own home or undertaken building works without raising the concerns of the LPA.
Temporary Stop Notices will also benefit from an extended effective period, with the notice ceasing to have effect at the end of 56 days, rather than the current 28 days. The doubling of the stop period will allow LPAs greater time to investigate potential breaches and prepare to enforce against them, but it is important to note the corollary effect which will be to increase, perhaps by double the amount, the compensatory burden on the LPA, should it have made a mistake.
Enforcement warning notice
The Bill also introduces the new Enforcement Warning Notice into the LPA’s pre-enforcement arsenal, perhaps as a follow up to a planning contravention notice questionnaire requiring information from the developer. The warning notice will allow the LPA to prompt a developer to make an application for retrospective permission where it considers:
- That works have been undertaken in breach of planning control; but
- Consider that the development in question would otherwise be granted permission.
We are unclear how this may, in reality, differ from simple written correspondence from the LPA nor how it may need to.
Another change introduced by the Bill is the new power for a Planning Inspector to dismiss an appeal of an Enforcement Notice where the Inspector considers the Appellant is responsible for “undue delay in the progress of the appeal”. The same power is extended in relation to appeals concerning Certificates of Lawfulness.
It is not clear what is meant by undue delay and, presumably, this will be entirely within the discretion of the Inspector. However, whether anything will be done to untangle the serial delays to appeals caused by the limited availability and resources of the Planning Inspectorate is not addressed.
Breach of condition
The Town and Country Planning Act 1990 is further amended in the way in which fines are calculated where a person fails to comply with a breach of condition notice.
Whilst fines for the breach of a condition notice can be charged for each day of non-compliance, they are currently limited for each daily charge to the level 4 maximum, which is £2,500. The Bill proposes to remove the limit entirely.
The same amendment is found for fines for non-compliance with a notice requiring an owner and occupier to remedy the condition of land pursuant to an untidy site notice pursuant to section 215.
Our experience is that these tools are rarely used by LPAs, and these amendments might be aimed at trying to address that.
Relief from enforcement
Finally, the Secretary of State will soon have powers under secondary legislation to provide that a LPA in England may not take certain enforcement measures in relation to any actual or apparent failure to comply with a relevant planning condition, within a certain “relief period”.
It appears that this is a response to the Covid-19 pandemic, during which time LPAs have been encouraged by the Government (in correspondence, rather than through legislation) to be flexible in terms of enforcement action of non-compliance with conditions governing construction working hours and delivery hours, due to supply chain issues and the shortage of heavy goods vehicles. How the powers will be used in practice remains to be seen.
As can be seen, the Bill intends to deliver additional enforcement powers to LPAs, and developers should prepare themselves, particularly where they control currently unauthorised operational development, as they may soon be required to look further into the past to avoid being caught out.
Levelling-up and Regeneration Bill: planning proposals
Levelling Up and Regeneration Bill - Environmental impacts