If planning permission is not obtained (intentionally or as an oversight), the local planning authority can take enforcement action. The most commonly used power is a planning enforcement notice.
The courts have recently considered cases regarding planning enforcement in rural areas. Although the cases are fact specific, the courts are taking a tougher stance on enforcement, particularly in relation to prosecution for breaches. We set out the key points for developers and land owners.
Enforcement action: what is a planning enforcement notice?
Planning permission is required in relation to any form of development that involves engineering operations or a material change of use of land. If planning permission is not obtained (either intentionally or as an oversight), then the local planning authority can investigate this and take enforcement action.
The most commonly used power in the Town and County Planning Act 1990 is the issue of a planning enforcement notice to the owners and occupiers of land. The planning enforcement notice identifies the breaches and requires remedial steps to be taken.
Planning enforcement appeal grounds
A right of appeal is available on a number of statutory grounds, including:
- planning permission should be granted
- the matters have not occurred
- the matters do not constitute a breach
- no enforcement action could have been taken (e.g. due to the passage of time)
- copies of the notice were not properly served
- the steps required to be taken are excessive
- the period to remedy breaches is too short.
It is possible to apply for planning permission in respect of the alleged breach. In the case of Arnold v Secretary of State, the High Court held that planning permission could only be granted on appeal in relation to the matters stated in the enforcement notice and the Inspector was not able to consider alternative schemes that fell outside the scope of the notice if they were materially different.
In such circumstances, it would be open to the appellants to submit a separate planning application in relation to the alternative scheme, which could cover a wider area of land than that subject to the enforcement notice.
Certificates of lawful use
An application for a certificate of lawful use cannot be determined where enforcement action has been taken in respect of the subject of the application.
In Wokingham Borough Council v Scott, the defendants submitted an application for a certificate of lawful use for retail premises and greenhouses for their horticultural nursery and farm shop business. The application was refused as the use was subject to a valid enforcement notice. Following the refusal of an appeal and a judicial review, the council sought an injunction to remedy the breaches.
The court held that it was expedient for the breaches to be restrained by injunction and the widespread support for the defendants’ businesses did not circumvent the public interest in enforcing planning control in the green belt.
Breach of enforcement notice
It is an offence to fail to comply with an enforcement notice (prosecuted by way of a fine). Local authorities have the power to enter the land and carry out the necessary works to remedy the breach, and recover the costs of doing so.
In the cases of Wealden District Council v McCreadie and Wokingham Borough Council v Scott, enforcement notices were issued but not complied with, resulting in the local authorities seeking injunctions to cease the use of the land for the placing of caravans and demolish a dwelling in a forested area.
The courts held that an injunction could be granted where it was just and proportionate to do so and that a judge hearing an injunction application could not consider the merits of the planning decision as this was a matter for the appeal stage.
The government recently updated its practice guidance on when planning permission is required for farm shops, polytunnels and on-farm reservoirs. This serves as a timely reminder that the position is often not clear-cut with rural development and permitted development rights have their restrictions.
Following enforcement action being taken, it is important to act quickly and cooperate with the authority to avoid matters becoming unnecessarily protracted or hostile. Authorities may serve a planning contravention notice to investigate what works or uses are occurring, before service of an enforcement notice. This is a good opportunity to persuade the authority that no breach has occurred or seek to ‘shape’ any grounds of appeal, in readiness for any formal action.