Some practitioners appear to be unclear about certain breaches of planning control and the time limits that local authorities have for taking enforcement action to remedy them. The Localism Act 2011 includes increased planning enforcement powers, which came into effect on 6 April 2012. This article looks briefly at some of the key points that architects need to be aware of and explains why it is important not to be complacent about unauthorised development.
Except in the case of works to listed buildings and certain other heritage assets, carrying out development without the necessary planning consent is not a criminal offence, and legislators have always baulked at the idea of making it so. However, failure to comply with a planning enforcement notice is a criminal offence, which carries with it the risk of heavy fines and ultimately imprisonment.
Planning authorities have an extensive armoury of weapons at their disposal for attacking breaches of planning control but are under no obligation to use them. Enforcement action is discretionary and should only be taken where it is 'expedient' to do so. In general terms, this means where an unauthorised development is causing serious harm, rather than it being a trivial or technical breach in control, and where all other attempts by the local authority to attempt the owner or occupier of the site voluntarily to remedy the harmful effects of the development have failed. Enforcement action must also be proportionate and taken within prescribed time limits.
The most common action is the service of an enforcement notice, against which there is a right of appeal to the Secretary of State on several grounds, which are, to paraphrase: that planning permission should be granted for the development; that there has been no breach of control; that the breach alleged in the enforcement notice has not occurred as a matter of fact; that it is too late for the authority to take action; that the notice was not properly served; that the requirements of the notice are excessive; and that the period for compliance is too short.
Where urgent remedial action is deemed to be necessary, a local authority may serve a stop notice. A failure to comply with a condition of a planning permission may be enforced against by a breach of condition notice. There is no right of appeal against either of these actions. In extreme cases, a planning injunction may be sought from the courts.
There are two time limits set out in section 171B of the Town and Country Planning Act 1990 for an authority to take enforcement action: four years where the breach comprises either operational development (the carrying out of unauthorised building, engineering, mining or other operations) or the change of use of a building to use as a single dwellinghouse; and ten years for all other breaches of planning control (including unauthorised uses and the contravention of planning conditions).
While these time limits appear straightforward, in practice they have sometimes given rise to practical difficulties of interpretation that inevitably have fallen to the courts to resolve. For example, in the case of a change of use of a building to a single dwellinghouse or operational development that has been carried out in breach of a planning condition, the time limit is four years and not ten. Moreover, in the case of an unauthorised new building, whether it be for residential or commercial use, while the building itself will become immune from enforcement action after four years from its substantial completion, the use will not be lawful until after ten years from the date the use commenced, subject to certain other considerations.
Failure to comply with planning conditions
In recent years, there has been growing concern over the failure of applicants to discharge and adhere to relevant planning conditions. It is important to take conditions seriously and to comply with their requirements.
Where work commences on an approved development without having complied with any pre-condition (correctly known as a 'condition precedent'), the development will be unlawful. There has been extensive case law on this matter in recent years. In cases where it is not possible to discharge the requirements of a pre-condition within the lifetime of the permission, this can result in the planning permission being lost.
So at a time when many developers have permissions that, because of difficult market conditions they are unable or unwilling to implement, and which are close to lapsing, the alternative to renewing the permission by making a material start to the development must be considered very carefully and only contemplated after all the relevant pre-conditions have been discharged properly.
Changes following a grant of permission
It is not unusual for changes to be made to a development after planning permission has been granted. Approval for changes of a very minor nature may be sought using the simple non-material amendment application procedure under Section 96A of the 1990 Act. Permission for changes that are considered to be minor material amendments may be sought under Section 73 of the 1990 Act through the submission of substitute plans, but only where the permission includes a condition that says that the approved development shall be carried out in accordance with the plans listed in the permission. If the permission does not include such a condition that can be modified, it is possible to apply to add a condition listing plans under the Section 96A procedure, prior to invoking the procedure under Section 73.
Where development has already been carried out without planning permission or without complying with some planning condition, retrospective permission may be applied for under section 73A of the 1990 Act. However, following the Localism Act 2011 a planning authority has the right to decline to determine such applications after an enforcement notice has been issued.
I have sometimes been told by architects that the planning system is only concerned with the external form and appearance of a building and that what goes on inside is beyond its control, because internal changes do not constitute development for which planning permission is required. Therefore once permission has been granted, it is claimed, a developer can lay out the interior of the building in any way they choose. This is incorrect. Only limited internal changes can be made - and only once the development has been completed in accordance with the approved scheme - and provided there is no condition restricting the development to that shown on the approved drawings.
Localism Act 2011
The new act contains several new enforcement provisions. The one that has received the greatest publicity is the introduction of new section 171BC of the 1990 Act, which deals with time limits for enforcing against concealed breaches of planning control. This section is a response to two high profile cases. The first involved a developer who had gained permission for a hay barn, constructed a building that was to all external appearances the permitted barn (with walls in profiled metal sheeting, a roller-shutter door, two smaller doors and eight roof lights), but who had fitted it out internally as a dwellinghouse and lived in it for four years. The second case concerned a builder who had concealed a mock Tudor castle behind a 12m high shield of straw bales and tarpaulin for four years. In both cases the courts ruled that the new homes were unlawful, so their owners' attempts to circumvent the planning system through their dishonesty failed.
New section 171BC allows a planning authority that discovers an apparent breach of planning control to apply to a magistrates' court for a planning enforcement order, within six months of its discovery. That order then gives the authority a year in which to take enforcement action, even after the time limits in section 171B of the 1990 Act have expired. Concern has been expressed by some lawyers that the new provision goes beyond dealing with acts of physical concealment and could extend to an individual's perceived deceitful behaviour in such matters. How section 171BC is to be interpreted is something that the courts will at some point undoubtedly clarify.
Other new provisions include a limit to the right of appeal against an enforcement notice after a retrospective planning application has been submitted, but before the time for making a decision has expired, and an increased financial penalty for failure to comply with a breach of condition notice.
The effective enforcement of planning control is a matter that the government is clearly concerned about. In order to avoid breaches in control it is important to understand what needs permission and the possible consequences of unauthorised development. If your client is faced with enforcement action, or the threat of enforcement action, advice should be sought immediately from a planning consultant or a planning solicitor.
About this article
The views expressed in this article are entirely his own. No responsibility can be accepted for any consequences arising out of any actions based on the advice in this article - it should not be relied upon as a substitute for specific legal or professional advice.