The Levelling-up and Regeneration Act 2023 (LURA 2023) and Enforcement

Karen Jones and Sabah Siddiq, in our leading Planning & Environmental Law team, discuss the Levelling-up and Regeneration Act 2023 (LURA 2023) and Enforcement.

The Levelling-up and Regeneration Act 2023 (LURA 2023) received royal assent on 26 October 2023.

LURA 2023 comprises of 13 parts and Part 3 (Planning) sets outs the planning reforms. Chapter 5 covers Enforcement, and the relevant sections are sections 115 to 121 of LURA 2003. Regulations are required to bring these provisions into force.

Amendments to Town and Country Planning Act 1990

The main reforms to Enforcement are to the existing Enforcement provisions in the Town and Country Planning Act 1990 (as amended) (the 1990 Act) and are as follows:

1) Immunity Period

S171B (1) of the 1990 Act provides a four-year time limit on Local Planning Authority’s (LPA) ability to take Enforcement action against unauthorised operational development consisting of building, engineering, mining or other operations. S171B(2) of the 1990 Act allows LPA to take Enforcement action against a change of use of any building to use as single dwellinghouse. 

S155 of LURA 2003 amends s171B (1) and (2), extending the time from four to ten years for LPA to take Enforcement action. The time limits for Wales remains unchanged. Therefore, the time limits to take Enforcement action in England for operational development, including change of use to a single dwellinghouse and for change of use of land will be 10 years. This is a substantial change to the time limit given that the change of use to single dwelling house had always been the shorter period of four years and extending the time limit to 10 years means that the time period has more than doubled.  As a consequence, there could be an increase in Enforcement against any unauthorised change of use to single dwellinghouses.

2) Temporary Stop Notices

S171E of the 1990 Act sets out the provisions in relation to Temporary Stop Notices (TSNs). TSNs are used by LPAs where there is a suspected planning breach to stop any further development taking place to allow them to investigate the breach and decide where further Enforcement action is required. S116 of LURA 2023 amends s171E of the 1990 Act to allow LPAs to issue a TSN that has effect for up to 56 days instead of the current period of 28 days under the 1990 Act.

Although the extended time for TSN to remain in effect will allow LPA more time to investigate any potential breaches, it will however have costs implications for landowners and developers who will have to stop all construction works until any potential planning breaches is resolved. Failure to comply with a TSN is an offense.

3) Restrictions on Enforcement notice appeals

S174(2) of the 1990 Act sets out the grounds on which an appeal can be made, and ground (a) allows for retrospective planning permission. S174(2A) removes the ability for a person to lodge a ground (a) appeal against an Enforcement notice issued in England in certain circumstances, for example an Enforcement notice was issued after a related planning application had been made but before the statutory time for deciding on the application has expired. S174(2B) states that for the purpose of subsection 2A, a planning application is related to the Enforcement notice, if it involves granting permission for matters specified in the Enforcement notice.

S118 of LURA 2023 will substitute ss174(2A) and (2B) with ss174(2A), (2AA), (2AB) and (2AC), which extends the circumstances in which the ability to lodge a ground (a) appeal is removed, so that there is only one opportunity to obtain retrospective planning permission after unauthorised development has taken place.

4) Undue delays by the Appellant in Enforcement Notice and Lawful Development Certificate appeals

S119 of LURA 2023 amends s176 (determination of appeals relating to Enforcement notice and s195 (appeals relating to certificates of lawfulness) of the 1990 Act to enable the Secretary of State to dismiss an appeal, in England, in relation to an Enforcement notice or an application for a lawful development certificate, where it appears to Secretary of State that the appellant is causing undue delay to the progress of the appeal process. In such circumstances, the Secretary of State may issue a notice explaining that the appeal may be dismissed if the appellant does not take the steps specified in the notice to expedite the appeal within the specified time.

This is a positive amendment which gives Secretary of State the power to expedite the appeals where there are undue delays by the Appellants to progress Enforcement and certificate of lawfulness appeals. What will amount to “undue delays” remains to be seen and note that this provision applies only to the Appellant and does not extend to the LPA.

5) Increase in maximum fines imposed

S187A and s216 of the 1990 Act deals with the Enforcement of planning conditions and penalties for failing to comply to with a s215 notice (maintenance of land). S120 of LURA 2023 amends these sections to increase the maximum level of fines in England only. The fine levels for Wales remain unchanged. The fines imposed under ss187 and 216 is “…not exceeding level 4 on the standard scale”, and LURA now amends this to say “to a fine”, which means that maximum level that a fine can be imposed is removed.

The New Enforcement Provisions Introduced by LURA 2023

1) Enforcement Warning Notices

S117 of LURA 2023 inserts s172ZA into the 1990 Act. This creates a new power for LPA in England to issue an Enforcement warning notice where there is breach of planning control and there is reasonable prospect, that if a planning application is submitted for the unauthorised development, planning permission would be granted. The LPA may serve an Enforcement warning notice requesting the submission of a retrospective planning application within a specified period. If an application is not received within the specified period, the LPA can take further Enforcement action. This is an additional power, which will be available to the LPA which requires a retrospective planning application to be submitted within a certain time period.

2) Relief from Enforcement of planning conditions

Since COVID in March 2020, LPAs were encouraged to be flexible in terms of Enforcement action for non-compliance with conditions imposed on grants of planning permission, governing construction working hours and delivery hours, and this was in response to the COVID-19 pandemic and then later to address the acute shortage of Heavy Goods Vehicles (HGVs). S16 of the Business and Planning Act 2020 (modification of conditions relating to construction working hours) introduced this Enforcement flexibility.

S121 of LURA 2023 inserts a new s196E into the 1990 Act, which enables the Secretary of State to provide, by regulations, that LPAs in England may not take, or are subject to specific restrictions in how they may take relevant Enforcement measures against a developer or individual for non-compliance with specified planning conditions or limitations for a specified period of relief. S121 came into force on 26 December 2023.

Comment

As already mentioned, the majority of the provisions in relation to Enforcement will be brought into force through secondary legislation, whereby by the Secretary of State makes the Regulations, except for provisions relating to relief of planning conditions (s121 of LAURA 2023), which came into force on 26 December 2023.

No indication has been provided by the Government of timescales for when the Enforcement provisions will come into force and with a general election not too far, we could see a change in government and who knows what will happen then. It is possible these provisions could remain on the statute book but never be introduced. As the saying goes ‘watch this space’.

For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.