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Insights // 13 June 2019

Non Compliance With an Enforcement Notice – the Implications

Partner Karen Jones, in our leading Planning & Environmental Law team, explains what happens if you fail to comply with an enforcement notice.

We have previously published an article on the grounds on which an Enforcement Notice can be appealed.

If an appeal is submitted in respect of an Enforcement Notice (“EN”) the effect of the EN is suspended until the outcome of that appeal. Accordingly, the steps required to be taken by an EN are not so required to be done whilst an appeal progresses. In addition, the Local Planning Authority (“LPA”) cannot prosecute for failing to comply with the terms of the EN during the appeal.

What happens if I do not appeal?

Compliance with an EN does not discharge the requirements in that notice (Section 181 of the Town and Country Planning Act 1990 (“the Act”)). Compliance with an EN is a continuing obligation and if steps are taken at a later date which contravene the EN the LPA can take steps to prosecute for that non-compliance. Further, once an EN takes effect it will be registered as a Local Land Charge. If the EN is complied with it will not be removed as a Local Land Charge but will, or should be, marked as complied with. If you do comply with the requirements of the EN some LPAs permit an application to be made to them (with a fee) to request that the EN is withdrawn. It is however highly unlikely that an LPA will withdraw an EN unless the breach is very unlikely or impossible to occur again.

If you do not appeal an EN and the time for appealing it passes then you lose the right to appeal the notice at a later date. The Planning Inspectorate has no discretion to vary the time limit in order to permit a late appeal of an EN.

If you continue to allow the breach of planning to occur and do not take the steps required by the EN to comply with its requirements, an offence will have been committed. The LPA may therefore decide to prosecute you for non-compliance with the notice. The LPA is not required to take steps to prosecute, it is a discretionary action and the LPA may not consider it expedient to do so.

However, if you are prosecuted and found guilty then the possible fine which might be ordered is unlimited. At this stage it is too late to argue that planning permission should be granted for the unauthorised development, that the terms of the EN are too onerous or other grounds which would otherwise be available at the appeal stage.

There are very limited grounds on which a defence can be advanced. For more details please click here.

Proceeds of Crime

If a prosecution results in conviction then the LPA can apply for a confiscation order under the Proceeds of Crime Act 2002. If an Order is made it will require the defendant to pay the amount the Court determines the convicted defendant has benefitted from the offence.  Such applications by LPAs are increasingly common and if an Order is made, the LPA is able to receive up to 37.5% of the receipts from any such Order.

Example

A house had been divided into three flats and an Enforcement Notice is served requiring the house to be returned to use as a single dwelling house. The owner does not appeal the notice and further does not comply with the notice. The LPA successfully prosecutes the owner for non-compliance for the notice. The house has been divided into flats for 48 months with 12 of those months being after the Enforcement Notice was served. The owner has received a rent of £500.00 per month for each of the three flats during that time. The amount that the defendant would have benefitted from the continuing offence could be calculated as: £500.00 x 3 x 12. The Order could therefore require a payment of £18,000.00. This is in addition to the sentencing fine.

For further information or legal advice, please contact law@blandy.co.uk 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.

Karen Jones

Karen Jones

Partner, Planning & Environmental Law

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