What is a planning enforcement notice
Councils can take planning enforcement action if they believe there has been a breach of planning control.
This usually means one of three things. Something has been built without planning permission. Something has been built differently from the approved plans. Or the use of land or a building has changed without planning permission.
A council can also take enforcement action if a planning condition has not been complied with.
Planning enforcement can be worrying because the consequences can be serious. An enforcement notice can require you to demolish building works, stop using land or buildings in a particular way, or carry out works to put the situation back as it was.
The most important point is simple: never ignore an enforcement notice. If you do not appeal in time, the notice will normally take effect and you may lose the chance to challenge it.
The initial investigation
Councils will usually investigate before deciding whether to take formal enforcement action.
An enforcement officer may visit the property, write to the owner or occupier, ask questions, or invite an explanation. In some cases, the council may send a Planning Contravention Notice.
A Planning Contravention Notice is a formal request for information. It may ask when works were carried out, how land or buildings are being used, who owns or occupies the property and what the planning history is. It is important to answer carefully. Failing to respond, or giving false or misleading information, can be an offence.
At this stage, it is often still possible to avoid formal enforcement action. Sometimes the council may decide that there has been no breach. The case can decide that there is a breach but it is not serious enough to justify enforcement action. Sometimes the breach may be immune from enforcement action because of the passage of time. In other cases, the council may invite a retrospective planning application.
Retrospective planning applications
A retrospective planning application is an application made after the works have been carried out or after the use has started.
There is nothing unusual or improper about a retrospective application. The council must consider it in the same way as any other planning application. In other words, it should consider whether planning permission should be granted, not simply punish the applicant because the development has already happened.
However, a retrospective application needs to be handled carefully. If the council refuses it, that refusal may make enforcement action more likely. In some cases, a planning appeal against the refusal will be the right step. In other cases, it may be better to wait and appeal the enforcement notice, because an enforcement appeal can raise wider arguments.
The right strategy depends on the facts. It is usually worth taking advice before submitting a retrospective application, especially where the council is already investigating.
The enforcement notice
An enforcement notice is a formal legal document. It will identify the land, describe the alleged breach of planning control and set out the steps the council says must be taken.
An enforcement notice can require you to do things such as:
- demolish or alter unauthorised building works;
- remove materials, structures or equipment from land;
- stop using land or buildings for an unauthorised purpose;
- reinstate land or buildings to their previous condition;
- comply with a planning condition.
The notice will also state when it takes effect and how long you have to comply with it.
This is critical. The deadline for appealing is linked to the date on which the notice takes effect. The notice must specify a date not less than 28 days after the date of issue, and an appeal must be made before the notice takes effect.
Time limits for enforcement action
There are legal time limits on when councils can take enforcement action.
The old position was that many building works, and changes of use to a single dwellinghouse, became immune after four years. That has now changed in England.
For breaches occurring on or after 25 April 2024, the main enforcement period is now ten years. This includes operational development, such as building works, and changes of use to a single dwellinghouse. The four-year rule can still apply in some cases where the relevant works were substantially completed, or the use began, before 25 April 2024.
This means dates are extremely important in enforcement cases. It is not enough to say that something has been there ‘for years’. The question is usually when the works were substantially completed, when the use began, whether it continued without interruption and whether the correct enforcement period has expired.
If the time limit has passed, the development may be immune from enforcement action. In that situation, it may be possible to apply for a Lawful Development Certificate instead of applying for planning permission.
Appealing an enforcement notice
You have the right to appeal an enforcement notice if you own, rent or lawfully occupy the property or land affected by it. Enforcement appeals are made to the Planning Inspectorate, which is independent of the council.
There are seven grounds of appeal. In broad terms, you can argue that:
- planning permission should be granted for the development or use;
- the alleged breach has not happened;
- what has happened is not a breach of planning control;
- the council is too late to take enforcement action;
- the notice was not properly served;
- the steps required by the notice go too far;
- the time allowed for compliance is too short.
You do not have to rely on just one ground. Many enforcement appeals involve several grounds at the same time.
For example, you might argue that planning permission should be granted, but also that the council has required more demolition than is reasonably necessary. Or you might argue that the alleged use is lawful because it has continued for long enough, while also arguing that permission should be granted if the inspector disagrees.
Why appealing is important
If you do not appeal an enforcement notice, it will normally take effect. Once that happens, you are required to comply with it.
Failure to comply with an enforcement notice is a criminal offence. It can lead to prosecution, fines and further action by the council.
This is why enforcement notices should be treated seriously and urgently. Many people contact us after the appeal deadline has already passed. By that stage, the options are much more limited.
An appeal does not guarantee success, but it does give you the opportunity to challenge the council’s case. It can also buy time, because the requirements of the notice are usually suspended while the appeal is being considered.
In some cases, we are appeal to persuade the council to withdraw the notice.
Should you always appeal?
Not every enforcement notice should be appealed. Sometimes the council is right, the breach is clear and the notice is proportionate. In those cases, the sensible approach may be to comply, negotiate more time or agree a practical way forward.
But you should always consider appealing before the deadline passes.
There may be arguments about whether there has been a breach at all. The council may have misunderstood the facts. The development may be immune from enforcement action. Planning permission may be justified. Or the council may have required excessive steps, such as complete demolition when a smaller alteration would solve the problem.
Once the appeal deadline has passed, those arguments become much harder to raise.
Get advice quickly
Planning enforcement is one of the more serious parts of the planning system. The deadlines are short and the consequences of getting it wrong can be severe.
If you have received an enforcement notice, you should take advice immediately. Do not wait until the notice takes effect. Do not assume the council will give you more time. And do not ignore it.
Just Planning regularly acts for homeowners, landlords and businesses in planning enforcement cases. We can review the notice, advise on the prospects of appeal and prepare the appeal on your behalf.
Check out our planning enforcement page or contact us now.
Most importantly: never ignore an enforcement notice.
