Solicitor Kayleigh Chapman, in our leading Planning & Environmental law team, explains how enforcement notices are served, what to do if you receive one and on what grounds an enforcement notice can be appealed.
What are Enforcement Notices?
A Local Planning Authority (“LPA”) has the power to issue an enforcement notice (“EN”) under Section 172 of the Town and County Planning Act 1990 (“the Act”) in respect of a breach of planning control. An enforcement notice may be issued where an LPA identifies a breach of planning control but only where they consider it expedient to issue the notice having regard to the development plan and to any other material considerations.
LPAs are advised in the Planning Practice Guidance (“PPG”) to take steps proportionate to the breach of planning control. The PPG advises that LPAs should avoid taking formal enforcement action (such as the issue of an EN) where a breach is trivial or development is acceptable in principle.
If a LPA does issue an EN in respect of the alleged breach of planning control then the EN must comply with certain formalities. For example the EN must state the alleged breach, the steps required to rectify the breach and specify a time limit within which to comply with the steps required.
What can you do if you have been served an Enforcement Notice?
If you have been served with an EN you should seek professional advice and consider whether an appeal should be submitted. Appeals must be submitted to the Planning Inspectorate (PINS) before the date the EN is stated to take effect. PINS has no discretion to accept late appeals and accordingly care should be taken in ensuring any appeals are submitted within the time period allowed.
Implications of not appealing
Failure to appeal means that an EN and its requirements cannot be challenged. If the EN takes effect and you have not appealed and do not comply with the terms then you are risk of a criminal prosecution. Further, if the EN takes effect then it may present difficulties when dealing with the land or property, for example on a sale or re-mortgage. The presence of the EN will be shown on any local search.
It is very important to appeal a notice if you wish to challenge its terms. The effect of appealing the EN is that the terms of the notice are suspending until such time as an appeal decision is made. It is very important to take professional advice on the need for appeal.
Basis for an appeal
Appeals against an EN are possible on certain limited grounds by those with an interest in the land subject to the enforcement notice. The grounds of appeal are contained in Section 174 of the Act and are outlined below. It is usual to appeal on multiple grounds:
a) That planning permission should be granted for the breach of planning
If you choose to appeal under this ground of appeal you will need to pay the relevant planning fee with the appeal. This ground of appeal will be a consideration of the planning merits of the development. It is important that you seek professional advice as to whether the development/breach of planning is supported by planning policy such as the relevant Local Plan. The Inspector will determine the appeal under Ground ‘a’ on the same basis as a LPA would consider a planning application.
b) That the breach of planning has not occurred
c) That what has been done has occurred as a fact but it is not a breach of planning
Examples of arguments which might be advanced in relation to this ground include: whether a material change of use has in fact occurred, whether a use is actually ancillary or interpretation of the General Permitted Development Order 2015 (as amended) or whether a development is in fact permitted by a class in that Order.
d) That at the date when the EN was issued no enforcement action could be taken
Section 171B of the Act provides timeframes within which unauthorised development can become lawful through passage of time. After the relevant period the breach of planning will be “immune” from enforcement action. Enforcement action in respect of operational development or change of use of any building to a single dwelling house must be brought within 4 years of the operations being substantially completed or the change of use occurring. For other breaches of planning control such as change of use of land or buildings or breach of conditions the period is 10 years. After these periods, unless deliberate concealment has occurred, enforcement action should not be taken and an appeal under Ground ‘d’ should be advanced if such action has been taken.
You will need to produce evidence, usually by way of a Statutory Declaration, to demonstrate that the use has occurred for the requisite period of time.
e) That the enforcement notice was not properly served
An enforcement notice should be served in compliance with Section 172 of the Act and should be served on the owner and occupier of the land to which the notice relates and on any other person having an interest in that land. It must be served no more than twenty-eight days from the date of issue; and must contain a period of at least twenty-eight days for compliance before it can take effect.
f) That the steps required to be taken in the enforcement notice exceed what is necessary to remedy the breach of planning
An example of this ground would include where a wall has been built higher than that which is likely to be authorised if the development complied with planning policy. An EN requiring the wall to be completely demolished as opposed to requiring a reduction in height to make it acceptable in planning terms may be found to exceed what is necessary.
g) That the time period within which to rectify any breach is not reasonable
This ground is usually used as a fall back in case the other grounds are rejected by the Inspector. It is predicated on the basis that the period within which to comply with the requirements of the notice fall short of what is reasonable to actually comply. Evidence will usually be produced to the Inspector to show why the period is unreasonable.
If you believe you are at risk of being served an Enforcement Notice or indeed you have received one you should seek professional advice as soon as possible. A solicitor can advise you on possible grounds of appeal, chances of success and strategy to deal with the situation in which you find yourself.
For further information or legal advice, please contact email@example.com or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.