How to handle a planning enforcement investigation
A visit from a planning enforcement officer can be alarming. For many homeowners and small developers, it is the first sign that something may have gone wrong with a building project.
It is easy to assume the worst. People often imagine that the council is about to make them demolish an extension, undo months of work or stop using a building in the way they had intended.
In reality, a planning enforcement visit is usually the beginning of an investigation, not the end of the story.
Before becoming a planning consultant, I worked as a council planning officer. I have seen enforcement investigations from both sides. I know how stressful they can feel from the outside, but I also know that many enforcement cases can be resolved sensibly if they are handled properly from the beginning.
This article explains what to do if a planning enforcement officer visits your property, what the council is likely to be looking for and when you may need professional help.
Why has a planning enforcement officer visited?
Most planning enforcement investigations begin with a complaint.
Councils do not usually patrol streets looking for unauthorised extensions, loft conversions or changes of use. Planning departments are busy, and enforcement teams normally have limited resources. In most cases, an officer visits because somebody has contacted the council.
That person is usually a neighbour. They may be concerned about the size of an extension, loss of light, overlooking, noise, parking, the use of an outbuilding or some other perceived planning issue.
A complaint does not mean that there has definitely been a breach of planning control. It also does not mean that the council will necessarily take formal action. The officer’s first job is usually to find out what has happened.
Stay calm and be cooperative
The most important thing is not to panic.
A planning enforcement officer is not there to punish you on the spot. They are there to investigate. They may want to look at the building works, take measurements, ask what the building is being used for, check when works took place or compare what has been built with the approved plans.
It is usually sensible to be polite and cooperative. Being defensive, evasive or aggressive rarely helps. It may also make the council more suspicious than it needs to be.
That does not mean you should say anything without thinking. If you are unsure about the planning position, it is perfectly reasonable to say that you would like to take advice before giving a detailed response. This is especially important where the issue concerns the use of a building, the date when a use began or whether works may be immune from enforcement action.
A short, calm conversation is often enough at the first visit. You do not need to argue the whole case on the doorstep.
A breach does not automatically mean enforcement action
One of the most important points to understand is that planning enforcement is discretionary.
The council does not have to take formal action just because there has been a breach of planning control. It must consider whether formal action is expedient, having regard to the development plan and any other material considerations.
In plain English, the council should ask whether the breach causes enough planning harm to justify taking formal action.
This is where many cases are won or lost. A minor technical breach may not justify enforcement action at all. The fact that something is slightly different from the approved plans does not automatically mean it has to be demolished or altered.
For example, an extension may be marginally higher than approved, slightly deeper than shown on the drawings or built with a small design change. The real question is whether that difference causes unacceptable harm.
Case study: a small difference in height
In one case, our client had planning permission for a rear extension to a Victorian terraced house. During construction, a parapet wall was raised slightly to hide guttering. The change was modest, but a neighbour complained.
The enforcement officer visited, measured the extension and found that part of it was around 150mm higher than shown on the approved plans.
The council initially took the view that the extension should be altered. We engaged with the officer and explained why the small increase in height caused no material harm to the neighbour or to the appearance of the property.
The council accepted that formal enforcement action would not be justified and closed the case.
That is a good example of why an enforcement investigation should not automatically be treated as a disaster. The council may identify a breach, but still decide that it is not worth taking formal action.
You may be invited to submit a retrospective planning application
If the council considers that there has been a breach, but the development may be acceptable in planning terms, it may invite you to submit a retrospective planning application.
A retrospective application is simply a planning application for development that has already taken place. It is assessed in the normal way. The council should consider the planning merits of the development, not punish you because the application was made after the event.
Sometimes this is the best route. It allows the council to regularise the position and grant permission for what has been built or for the use that has begun.
In other cases, a retrospective application needs to be handled carefully. The application drawings, supporting statement and description of development all need to be right. If there are obvious concerns, it may be sensible to propose a small amendment or compromise before the council reaches a decision.
When the council serves an enforcement notice
If the council considers that the breach is serious, or if it is not willing to resolve the matter through negotiation or a retrospective application, it may serve an enforcement notice.
An enforcement notice is a formal legal document. It will usually identify the alleged breach, explain why the council considers action is justified and set out the steps required to remedy the breach.
This might require you to remove an extension, stop using a building in a particular way, demolish an outbuilding, remove a structure, reinstate land or comply with approved plans.
An enforcement notice is serious, but it is not necessarily the end of the road. In many cases, it can be appealed.
Case study: the right house in the wrong place
In one Hillingdon case, a builder had planning permission to build a bungalow in a large garden. The bungalow was built to the approved dimensions, but it was positioned around 75cm closer to the rear boundary than shown on the approved plans.
A neighbour complained and the council served an enforcement notice.
We appealed the notice. The appeal succeeded, and planning permission was granted for the bungalow as built.
That case shows an important point. Even where development has not been built exactly in accordance with the approved plans, the appeal inspector still has to consider whether the development is acceptable in planning terms.
Do not ignore an enforcement notice
If you receive an enforcement notice, you must act quickly.
There is usually a short period before the notice takes effect. If you want to appeal, the appeal must be submitted before that date. If the deadline is missed, the right of appeal is usually lost.
Once the notice has taken effect, failure to comply with it can be a criminal offence.
The important point is that, if a valid appeal is lodged before the notice takes effect, the requirements of the notice are suspended until the appeal is determined. This means the council cannot require you to carry out the steps in the notice while the appeal is ongoing.
An appeal can therefore give you time, but it is not just a delaying tactic. It is your opportunity to challenge the council’s case, argue that planning permission should be granted, argue that no breach has occurred, or argue that the requirements of the notice are excessive.
The right grounds of appeal will depend on the facts of the case.
Take advice early
The best time to take advice is usually before positions have become entrenched.
If you have received a letter from the council, had a visit from an enforcement officer or been invited to submit a retrospective application, it is worth getting advice before responding in detail.
A good planning response can sometimes prevent a formal enforcement notice from being served at all. It can explain the planning history, identify any permitted development fallback, address the alleged harm and suggest a practical way forward.
If an enforcement notice has already been served, advice becomes more urgent. The appeal deadline is strict, and the grounds of appeal need to be chosen carefully.
How Just Planning can help
Just Planning regularly advises homeowners, landlords and small developers on planning enforcement problems.
We can review the council’s letter, planning history, approved drawings and photographs, then advise on the best way forward. That may involve writing to the council, preparing a retrospective planning application or appealing an enforcement notice.
Most enforcement problems are not hopeless. The important thing is to deal with them calmly, quickly and with a clear planning strategy.
If a planning enforcement officer has visited your property, or if you have received an enforcement letter or enforcement notice, contact Just Planning for clear, fixed-fee advice on your options.
