What is retrospective planning permission?
A retrospective planning application is simply a planning application made after development has already taken place.
That development might be building works that have already been carried out. It might instead be an unauthorised change of use that has already happened. Either way, the key point is that the application is made after the event, rather than before it.
The phrase sounds dramatic, and many homeowners assume it means they are in some special kind of planning trouble. In reality, a retrospective planning application is not a different species of planning permission. It is usually just an ordinary planning application, made later than it should have been.
It is not a special or softer form of planning permission
A retrospective planning applications should not be treated any differently to a standard planning application. The council is still supposed to assess the development in the normal way, looking at the usual planning considerations such as design, effect on neighbours, parking, character of the area and any other material considerations.
In other words, the question is still whether the development is acceptable in planning terms. The fact that it has already been built should not, in itself, make the planning judgment any harsher or any more lenient.
Sometimes applicants think that they are on the back foot when they are making a retrospective application, almost as if they are in trouble and are begging for forgiveness. That is not really what is going on. The real issue is whether planning permission ought to be granted for the development as it exists, or perhaps as slightly amended.
Why do retrospective applications happen?
In practice, retrospective applications often arise because planning enforcement has become involved.
A neighbour may complain. An enforcement officer may visit the site. The council may then write to the owner saying that, in its view, planning permission was required for what has been done. At that point, the council will sometimes invite a retrospective planning application.
That invitation is often misunderstood. Some people assume it means the council has already decided to refuse permission and is merely going through the motions. Others assume the opposite, namely that if the council has invited an application, approval is likely to follow automatically.
Usually, what it means is simply that the council is willing to assess the development properly through the ordinary planning application process before deciding whether formal planning enforcement action is necessary.
It can be a good sign. It may indicate that the council considers the development at least capable of being acceptable in planning terms, even if it has concerns that still need to be addressed.
Retrospective applications do not only arise in enforcement cases, though. Sometimes an owner realises of their own accord that permission should have been obtained. Sometimes a problem comes to light when the property is being sold or refinanced. Sometimes the works were carried out in good faith on the mistaken assumption that they were permitted development or already covered by an earlier consent.
Is it illegal to build first and apply later?
Carrying out development without planning permission is not usually, by itself, a criminal offence. The issue is normally that the development is unauthorised and may therefore be vulnerable to planning enforcement action.
A lot of homeowners hear the words ‘retrospective planning’ and immediately imagine fines, prosecution or some kind of punishment for having done the work. In most cases, that is not really the position. The real question is whether the development is acceptable, and if not, whether the council decides it is expedient to take formal action.
The criminal risk more often arises later, if an enforcement notice or breach of condition notice is ignored. That is when the position can become much more serious.
Does a retrospective application mean the council is likely to approve it?
The fact that the council has suggested a retrospective application does not mean planning permission will automatically be granted. If the development is unacceptable in planning terms, the council can still refuse permission. If that happens, it may then proceed to issue an enforcement notice requiring the unauthorised works to be altered or removed.
That is why retrospective applications need to be handled just as carefully as ordinary planning applications, and often more carefully. Accurate plans are still needed. The description of development still needs to be right. The planning case still needs to be thought through properly.
Sometimes the best approach is not to submit an application for the development exactly as built. In some cases, the wiser course is to submit amended plans which retain most of what has been done while addressing the council’s real planning concerns. That can be a much more effective way of regularising the position than simply insisting on keeping every detail unchanged.
Retrospective does not mean hopeless
Equally, the fact that an application is retrospective does not mean it is doomed.
Plenty of retrospective applications are granted every year. If the development is acceptable in design terms, does not harm neighbours and complies broadly with the development plan, there is no reason in principle why permission should not be granted simply because the works have already taken place.
A retrospective planning application is not the council ‘letting you off’. Nor is it necessarily the beginning of the end. It is simply the mechanism by which the planning merits of an already completed development are assessed.
Is a retrospective planning application always the right route?
No. In some cases, it is the wrong route entirely.
Sometimes the right question is not whether retrospective planning permission should be sought, but whether planning permission was ever needed at all.
For example, the works may in fact have been permitted development. Alternatively, the use or operation may have become lawful through the passage of time. In those cases, the correct route may be an application for a Lawful Development Certificate rather than a retrospective planning application.
A retrospective planning application asks the council to grant planning permission on the planning merits. A Lawful Development Certificate, by contrast, asks the council to confirm that the development is lawful as a matter of fact and law. One is a planning judgment, whereas the other is a legal exercise.
It is easy to see how people get this wrong. The council gets in touch, the owner panics and the instinctive response is to think ‘I need retrospective permission’. Sometimes that is correct. Sometimes it is not. Sometimes the better argument is that permission was never required, or that the development is now immune from enforcement and can be certified as lawful.
What about the time limits?
That question has become more complicated in recent years.
There was a time when people often spoke quite loosely about the old four-year rule and the ten-year rule. However, the enforcement time limits changed in April 2024.
The result is that, where development has been in place for some time, one should not automatically assume that retrospective planning permission is the correct answer. Sometimes the real issue is whether the development is already lawful, or can now be confirmed as lawful.
Is retrospective planning permission the same as building regulations approval?
Planning permission and building regulations are different regimes serving different purposes. Planning permission is concerned with matters such as use, design, neighbour impact and policy compliance. Building regulations deal with technical construction standards such as structure, insulation, fire safety and drainage.
A development can have one and not the other. So even if retrospective planning permission is granted, separate building regulations issues may remain. Equally, the fact that works comply with building regulations does not mean planning permission was not needed.
What should you do if the council raises retrospective planning?
If the council has raised the need for a retrospective application, that usually means it believes there has been a breach of planning control and wants the matter regularised through the proper process. Sometimes that will be the right way forward. Sometimes a Lawful Development Certificate is the better route. Sometimes amended plans are needed. Sometimes there is a strong case for defending the development exactly as built.
What is rarely sensible is to assume that the matter will somehow go away of its own accord. Once enforcement officers are involved, it is usually much better to get proper advice early, work out what the council’s actual concern is and respond in a considered way.
Final thoughts
A retrospective planning application is, in most cases, simply an ordinary planning application made after works have been carried out or a use has already started.
It is not a special indulgence and it is not a penalty procedure. The council should still assess the development on its planning merits in the normal way.
Retrospective applications often arise because planning enforcement has become involved, but that does not necessarily mean the situation is hopeless. In many cases, it simply means the council is saying: if you want to keep this development, you now need to make the proper application.
The key is to work out whether that really is the correct application to make. Sometimes it is. Sometimes the better route is to prove that the development is lawful. As with most planning problems, the right answer depends on the facts and on taking the right advice at the right stage.
If you have been asked to submit a retrospective planning application, or have been contacted by planning enforcement, we can advise on whether the right route is a Lawful Development Certificate, a planning appeal or a fresh application designed to regularise the position.
You can also read about one of our appeal against a refusal of retrospective planning permission cases here.
