Planning enforcement is a complex subject, whether the allegation is an Unauthorised Material Change of Use or Unauthorised Operational Development (i.e. building operations). Breaches of planning conditions may also result in enforcement or the issue of a Breach of Condition Notice.
There are strict time limits for registration of an appeal against an Enforcement Notice. Landowners or developers are advised to seek specialist advice as soon as possible when there is any suggestion of enforcement and certainly quickly following receipt of any formal notice. In many cases, advice may be required from a specialist planning solicitor or a barrister. J & J Design has experience of working with specialist planning solicitors and barristers in such situations, including the rare cases where the local planning authority serves an injunction rather than an enforcement notice.
Immunity from Enforcement
Parliament has recognised that where unauthorised development has not given rise to complaints over a period of time, the unauthorised activity may become immune from enforcement action. In summary, the immunity periods are:
- For new buildings and material changes of use to a dwelling – 4 years;
- For all other development or breaches of conditions – 10 years.
In such cases, the landowner may decide to seek a Lawful Development Certificate or in the event of an enforcement notice, one of the statutory grounds of appeal is that the time for enforcement has passed. In either case, the burden of proof is on the applicant/appellant – ‘On the balance of probability’ rather than the criminal test ‘without reasonable doubt’. It is therefore in the interests of the landowner to carefully retain any documentary records of unauthorised development including invoices for work carried out, letters and photographs for example.
Following two recent well publicised cases where unauthorised development was deliberately concealed until the period for immunity had passed, planning law has been amended to exclude any period where there is evidence of concealment. In any such cases, landowners will require specialist legal advice to clarify their position as a matter of urgency before the submission of an appeal.
Retrospective planning application or appeal
Parliament has also provided for a retrospective planning application in order to seek planning permission for the unauthorised development. In appropriate cases, where either the time limits for immunity have not expired or where there is a reasonable likelihood of planning permission being granted, the local planning authority may invite a planning application. This can be a suitable alternative to an appeal against an enforcement notice.
However, where an enforcement notice has been served, an appeal will normally include a Ground (a) appeal – that planning permission should be granted for the development. Furthermore, the law provides for a ‘deemed planning application’, to allow the Inspector considering the appeal to grant planning permission subject to appropriate conditions in suitable cases.
Whilst it is not ‘illegal’ to undertake unauthorised development, there are criminal penalties for failure to comply with the requirements of an enforcement notice. Enforcement notices or preliminary enquiries from a planning enforcement officer must always be taken seriously and advice obtained at the earliest opportunity.
Former Grain Store in rural Hampshire