When is it ‘expedient’ for a council to take planning enforcement action?
If you have carried out development without planning permission, or not quite in accordance with your approved plans, you may be bracing yourself for the worst. But before you assume the council is about to serve an enforcement notice requiring you to demolish what you have built, it is worth understanding that a breach of planning control is not a criminal offence.
You have not committed a crime by building something without planning permission. The offence only arises if the council serves an enforcement notice, it takes effect, and you fail to comply with it. Until that point, you are in a difficult position, but you have not committed a crime.
The expediency test
The council’s enforcement powers are discretionary. Before it can serve an enforcement notice, it must be satisfied that doing so is expedient — that is, in the public interest. It is a legal test, rooted in section 172 of the Town and Country Planning Act 1990 and reinforced by the National Planning Policy Framework, which requires councils to act proportionately in response to suspected breaches of planning control.
What that means in practice is that the council must weigh up the nature and extent of the breach, the harm it is causing, and whether formal action is a proportionate response. Just because a breach may exist does not automatically mean that formal action will be taken. If the breach is minor and causes no real planning harm, the council can (and should) let it go. Government guidance does not say that councils should take action against all unauthorised development.
The reality on the ground
Councils sometime forget that they are not under any obligation to take action. Some enforcement officers seem to operate on the basis that a breach is a breach and must be pursued at all costs. Others are reluctant to exercise their discretion, or are under pressure from a persistent neighbour or an animated local councillor, which makes it harder to close the case quietly. And some, I suspect, are simply not aware of how wide their discretion actually is.
In fact, the courts have confirmed that councils have a very wide discretion in deciding whether, when and how to take enforcement action. In one notable High Court case, a judge found that a council’s decision not to pursue enforcement action — and instead wait for a retrospective planning application to be made — was a perfectly lawful and legitimate exercise of that discretion. Neighbours and complainants cannot force a council’s hand.
Co-operate with your enforcement officer
You improve your chances by building a good rapport with your case officer. If you are uncooperative, evasive or misleading in your dealings with the enforcement officer, you make it much harder for the officer to exercise their discretion in your favour. An officer who cannot trust what you are telling them, or who has found you difficult to deal with, is far more likely to conclude that formal action is necessary.
The opposite is also true. Enforcement officers are not the enemy. They are doing a job, and most of them want an easy life as much as anyone else. Preparing and serving an enforcement notice is time-consuming and often leads to an appeal. If you engage honestly and constructively, ask for advice, and demonstrate a willingness to resolve the issue, you give the officer a reason to close the case without formal action.
Make the case for discretion
If you are facing enforcement action, do not just wait to see what the council decides. Make the case actively. Point out — ideally through a planning consultant — that the council is not obliged to take formal action, that the harm caused by the breach is limited, and that there are less drastic ways of resolving the matter. If a retrospective planning application might solve the problem, offer to submit one. If the development is broadly acceptable but needs minor adjustment, say so and propose the changes.
If an enforcement notice is served
If the council does decide to serve an enforcement notice, do not ignore it. This is where a lot of people go badly wrong – paralysed into inaction, or hoping it will somehow go away. We are contacted every week by clients with enforcement notices that have already taken effect and no longer have a right of appeal.
You will normally have 28 days from the date the notice is served to lodge an appeal. Miss that deadline and the notice takes effect, meaning you are legally required to comply with its requirements. Failure to do so is a criminal offence.
Appealing buys you time — enforcement appeals typically take nine months to a year — and gives you the opportunity to have the council’s decision reconsidered by an independent inspector. In many cases, a well-prepared appeal will prompt the council to reconsider whether it is worth proceeding at all. But none of that is available to you if you have missed the deadline.
In some case, a persuasive appeal can be enough to get the council to withdraw the notice.
The key message is: if you receive an enforcement notice, take professional advice immediately.
