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What to do if you receive a Planning Enforcement Notice

View profile for Charlotte Lockwood
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Charlotte Lockwood, associate in the Planning team at Roythornes Solicitors, looks at the practical steps you can take if you receive a Planning Enforcement Notice.

The first thing to say is that, in most cases, the receipt of a Planning Enforcement Notice should not come out of the blue.  Most local planning authorities have very detailed Planning Enforcement Policies which clearly set out the steps they should take in investigating any alleged breaches of planning control.  In most cases, there should be a clear paper trail of the local planning authorities’ steps in investigating any alleged breach, including initial correspondence inviting the recipient of the Planning Enforcement Notice to discuss the alleged breach and any measures which may be taken to rectify it.   Whilst a local planning authority generally has discretion as to whether it decides to take enforcement action in any particular case, it must be able to demonstrate that the service of the notice was taken for proper reasons -  namely, that it appears to the local planning authority that there has been a breach of planning control and that it was expedient to issue a notice in all the circumstances.  

If you receive a Planning Enforcement Notice, then it is important that you consider the following steps without delay:

  1. Check the date that the Planning Enforcement Notice is stated as becoming effective.

This is crucial, if an Appeal is to be made against the Notice, it must be submitted to the Planning Inspectorate before the date that the Notice is stated as taking effect.  If this deadline is missed, then: the right to appeal is lost, the Enforcement Notice takes effect and, if the recipient fails to comply with the requirements contained within it, they could find themselves facing prosecution.  The timeframe in which the Notice will take effect is often quite short (28 days) and this therefore leaves very little time in which to seek appropriate advice and potentially submit an Appeal to the Planning Inspectorate.

 

  1. Check that all procedural and legislative requirements have been complied with by the local planning authority in issuing the Planning Enforcement Notice.

It may seem like an obvious point but, in our experience, it is often overlooked.  We regularly review enforcement cases and find that the local planning authority has failed to properly identify the alleged breaches of planning control or incorrectly served the Notice.  One of the grounds of appeal is that copies of the Planning Enforcement Notice were not served as required under Section 172 of the TCPA 1990. Local planning authorities are required to serve the Planning Enforcement Notice on all parties with an interest in the relevant land.  Not only will this include the freehold owner and any tenants, but may also include any lenders with a charge against the land.  As a landlord, you are not absolved from potential liability under the Notice simply because the land is tenanted, and it is therefore advisable to take steps to protect your interests in the property concerned. 

 

  1. Check that the matters alleged to have been carried out in breach of planning control in the Planning Enforcement Notice have, in fact, occurred on the land or do not amount to a breach. 

A further ground on which an Appeal can be made is that the matters identified in the Notice have either not occurred or that they do not amount to a breach of planning control.  It is important to carefully consider the matters set out in the Notice against what has been taking place on the land in question.  The local planning authority may have relied upon inaccurate information in preparing the Notice which,  if those matters are found not to have taken place, could result in a successful Appeal against the Notice.

 

  1. Check how long the alleged breaches of planning control have been carried out on the land. 

The right to take enforcement action is lost where the local planning authority fails to take enforcement action within the following periods:

  • four years where the breach of planning control relates to operational development or the change of use of any building to use as a single dwelling house;
  • ten years in all other cases. 

If the alleged breach of planning control has subsisted for a period in excess of the above timeframes, the right to take enforcement action is lost and the operation or use which has been carried out becomes immune from enforcement action.  However, the alleged breach will not become immune from enforcement action, where a breach of planning control has been purposefully concealed.

 

  1. Finally, seek advice from a planning professional quickly.

Taking advice quickly when a planning enforcement notice has been served is essential in order to try and avoid further steps being taken against you. It could also result in the grant of planning permission if an appeal is successful.

Our team of experienced planning lawyers has advised landowners, developers and public bodies on enforcement issues and can advise on your options in the event that you receive a Planning Enforcement Notice.

Our specialist planning team helps land and property owners achieve their strategic goals, whether it be obtaining planning permission for a new development or assessing the impact of major infrastructure schemes on their land and interests.  We have considerable experience in contentious planning and environmental judicial review matters, planning enforcement, planning appeals and legal challenges, including Court of Appeal and Supreme Court litigation.

This note is intended as a general summary and is not intended to provide legal advice or be relied upon as such. The appropriate action to be taken in a particular case will depend on the facts and circumstances and specific legal advice should be sought if you are concerned about the legal options available to you.