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
J & J Design were engaged to assist landowners in respect of a substantial farmstead where former barns had been used for industrial purposes for about 30 years. The former grain store had been in a variety of non-agricultural uses prior to being let to tenants who were importing machinery from Europe resulting in an increase in HGV traffic in the rural lanes. This led to complaints to the planning enforcement officer. The local planning authority granted a Certificate of Lawfulness for the former barns but refused to grant a Certificate for the former grain store, arguing that there were two separate ‘planning units’. A retrospective planning application was refused by planning committee despite a favourable officer recommendation. This was followed by an enforcement notice.
In the subsequent appeals, undertaken by Written Representations, the Inspector agreed that there was a single ‘planning unit’ and granted a Certificate of Lawfulness for the grain store, together with planning permission for a Class B2 Industrial Use and the enforcement notice was quashed. The planning permission included a Lorry Routeing Agreement and local road widening scheme to provide passing places, all secured through planning obligations under S106 in a Unilateral Undertaking. J & J Design were advised by specialist planning solicitors throughout this case.
Agricultural and Landscape Contracting in former farm buildings – Gloucestershire
This farmstead in rural Gloucestershire had been used for traditional mixed farming with the family diversifying into agricultural and landscape contracting. The mixed farming had given way to a free range egg production unit before active agricultural use of the farmstead had ceased. An application for a Certificate of Lawfulness prepared by others was refused and J & J Design were engaged to assist with the subsequent appeal. After a careful review of the case and the evidence submitted, specialist planning solicitors advised that the appeal be withdrawn and a new application submitted with more comprehensive evidence. The second application was again refused. The subsequent appeal, undertaken at a Public Inquiry with a planning advocate, was allowed with a full award of costs made against the local planning authority. The former farmstead now benefits from a Certificate of Lawfulness for the contracting business including storage of machinery, a maintenance workshop and offices.
Domestic outdoor swimming pool – Bedfordshire green belt
A swimming pool was constructed in a private garden in the Bedfordshire green belt, where planning conditions had removed the usual ‘permitted development’ rights. A retrospective planning application was refused and an enforcement notice was served. J & J Design were engaged to handle appeals against both the planning refusal and the enforcement notice. The Inspector concluded that the swimming pool represented an outdoor recreation facility which is one of the exceptions to the national presumption against ‘inappropriate development’ in a green belt. Planning permission was granted and the enforcement notice was quashed. J & J Design were again advised by specialist planning solicitors in the preparation of the written representations case.