Planning enforcement
Our practice is able to provide a wide range of services relating to the provision of advice on planning enforcement issues. Our leading consultant, Michael Andrew Jones, has considerable experience in this field which has been gained since working in this field from 1978. He has conducted a large number of Public Local Enquiries on behalf of Appellants into the review of Enforcement Notices which have been challenged by way of Appeal. He has also been responsible for dealing with the provision of general advice on ways in which one can avoid Local Authorities pursuing enforcement proceedings in the first place. His experience in the field of the enforcement of planning control covers all aspects of enforcement work including Planning Injunctions, Standard Enforcement Notices, Planning Contravention Notices, Untidy Land Notices, Discontinuance Orders, Breach of Condition Notices, Stop Notices and Temporary Stop Notices. It should be noted that many Local Planning Authorities have adopted formal planning enforcement policy statements which are invariably displayed on their website. Furthermore, it should be noted that increasingly Local Planning Authorities are investing more resources in the enforcement function within their Planning Department. In general terms it is noted that there is grand swell of public support for placing greater emphasis on the enforcement of planning control wherever appropriate.
It is also noted that there is an increasing tendency for enforcement action to be taken at a much earlier stage than previously. Furthermore, the investigative powers granted to Planning Enforcement Officers have been increased and there are further proposals to increase them further. We have also noted that increasingly Local Authorities are taking a much tougher stance relating to even technical breaches of planning control. We have also noted that many Local Authorities have adopted a very vigorous prosecution policy relating to contraventions of Enforcement Notices and they have also made greater use of their direct self-help remedy powers under Section 178 of the Town & Country Planning Act 1990 whereby they can enter upon land and remove the material constituting the breach of planning control on the land in question.
Given the above context it is imperative that all landowners who encounter difficulties with the Local Planning Authority over alleged breaches of planning control should seek full experienced professional advice at the earliest stage. This practice is well placed to provide such advice in all circumstances and can move extremely quickly when required. Where necessary we can seek to negotiate with the Local Planning Authority. Where appropriate we can of course prepare and submit the formal Appeals against the Enforcement Notices issued by the Local Planning Authority for the purpose of ensuring that the Notices are suspended from taking effect pending the hearing of the Appeal at the formal Public Local Enquiry in due course.
It should be noted that our consultant, Michael Andrew Jones, has lectured widely across the country at various seminars on the law and practice concerning enforcement of development control. In a linked page within this website you will find a full set of seminar papers prepared by our lead consultant Michael Andrew Jones for your information.
It should be noted that enforcement proceedings involve the consideration of a number of highly technical issues. One important aspect is of course the issue of time limits. It should be noted that enforcement action can only be taken in respect of a defined breach of planning control which is under the terms of Section 171A of the Town & Country Planning Act 1990, either:-
A. The carrying out of development without the required Planning Permission; or
B. The failing to comply with any condition or limitation subject to which Planning Permission was granted.
It should be noted that enforcement action is defined in Section 171A(2) as:-
A. The issue of an Enforcement Notice under Section 172 of the 1990 Act; or
B. The service of a Breach of Condition Notice under Section 187A of the Town & Country Planning Act 1990.
With reference to the timing issue the law is clearly set out in Section 171B of the 1990 Act. Enforcement proceedings can also be issued against a development that is not immune from enforcement action. Immunity can only be established through the expiration of the relevant time periods. The time periods set out in Section 171B of the 1990 Act are as follows:-
A. Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed.
B. Where there has been a breach of planning control consisting in a change of use of any building to use as a single dwelling house, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach.
C. In a case of any other breach of planning control, no enforcement action may be taken after the end of a period of ten years beginning with the date of the breach.
Given the importance of time limits in enforcement proceedings, it should be noted that most clients need to consider this issue as a first step in the analysis of their position. In many cases one invariably finds that the Local Planning Authority has commenced enforcement proceedings far too late in the day. It therefore follows that an Appeal can be launched against any Enforcement Notice and the ground of Appeal will be that the appropriate time period has already expired before the date upon which the Enforcement Notice was issued. Provided that this can be established on the balance of probabilities at a Public Local Enquiry or an informal hearing, then the Enforcement Notice will be quashed. It should be noted that in order to forestall the commencement of formal enforcement proceedings it is often advisable to take the initiative by preparing and submitting a formal Application for a Lawful Development Certificate pursuant to Section 191 of the Town & Country Planning Act 1990. Our practice has extensive experience in the preparation and submission of a wide range of applications for Lawful Development Certificates. Accordingly, our firm is best placed to provide advice in this area and to also carry out the necessary work in the preparation and submission of such Applications. It should be noted that the preparation and submission of such Applications is a highly technical exercise and invariably involves the collation and marshalling of a substantial amount of evidence in support of the contention that the claimed use of the premises has subsisted for a period well in excess of the required immunity period. It should be noted that the burden of proof as always is on the landowner in this case and accordingly it is necessary to produce a substantial amount of very credible and cogent evidence in support of any such claim.
There are a number of technical issues relating to the immunity period which must be considered. For example the four year time limit on taking enforcement proceedings is stated not to start to run until the operations are “substantially completed”. The issue is of course what is meant by the term “substantially completed”. In the leading case of Sage v. Secretary of State for the Environment, Transport and the Regions (2003)1WLR at page 983 consideration was given to circumstances which related to an unfinished dwelling house that had been erected without the necessary Planning Permission.
The floor at ground level consisted of rubble, there were no services connected or a staircase to the upper floors. The interior walls were unfinished and none of the windows were glazed. The Local Planning Authority served an Enforcement Notice requiring the removal of the building.
In challenging the Notice Mr Sage argued that as no works had been carried out to the building in the four years preceding the service of the Enforcement Notice the Local Planning Authority were out of time to serve the Notice. This was on the basis that the building had been substantially completed once all the works constituting “development” under Section 55 of the T&CPA 1990 had been finished. The remaining works, such as work to the interior of the building, did not constitute “development” and therefore could not be regarded as “operations” for the purposes of the commencement of the four year time limit.
The argument founding favour at first instance and in the Court of Appeal, who held that “the building operations are complete when those activities which require planning permission are complete”.
However, the House of Lords, in overturning the CA decision, held that a holistic approach was implicit in planning control. Regard should be had to the totality of the operations which had originally been contemplated and which it had been intended to carry out. On this basis it was a question of fact and degree as to when operations were substantially completed and in this case it should not be said that the dwelling house had been substantially completed.
The concept of a holistic approach expounded by the House of Lords in Sage was applied by the High Court in First Secretary of State v. Chelmsford BC (2003) EWHC2800 (Admin) where it was held that bringing two mobile homes onto land and bolting them together did not constitute the substantial completion of that unauthorised operation.
It should be noted that consideration must clearly be given to special cases relating to time limits which clearly include the unusual four year rule concerning changes of use to single separate dwelling houses. There have been a number of cases on this issue and the most important in recent times has been that of the Court of Appeal in First Secretary of State v, Arun District Council and Akren Felicity Brown (2006) EWCA Civ 1958. The question here was whether the occupation of a single house in breach of condition was subject to the four year or ten year limit imposed respectively by S. 171B(2) or (3) of the T&CPA 1990 (see paragraph above). The CA (reversing the High Court decision) held that the “breach of condition” aspect was irrelevant, the section properly construed imposed a simple four year limit in respect of any premises used as a single dwelling house.
However, that approach was not followed in Grendon v. First Secretary of State (2006) EWHC (Admin) 1711. There the Appellant occupied as his home (a “somewhat hermit-like” existence was the Inspector’s finding) a building measuring about 4.25m x 5.8m which had a mono-pitch roof of corrugated sheets. It had a small window under the eaves at the north end and the south end was until recently largely open when the wooden shutters were folded back. Within the last year a window had been fitted behind the shutters. There was a sleeping platform at one end of the room and a sitting area with a settee at the other. Heating was provided by a wood burning stove and there was a butane gas hob for cooking. The walls were largely occupied with shelving containing books, music CDs and other personal possessions. Electricity had recently been connected, but for most of the period of occupation light had been provided by candles and paraffin lamps. There was no running, water, bathroom or toilet at the property.
It was agreed by the Learned Judge that two questions had to be answered:-
(i) whether as a matter of fact and degree the building is a dwelling house; and if so,
(ii) whether it has been used as a single dwelling house during the relevant four year period prior to the submission of the CLEUD application.
It would seem that in fact only the second of these questions had to be answered in the affirmative. The question is not whether the building occupied has the currently accepted attributes of a house, it is whether the premises have been used as such. However, the Inspector found the lack of toilets to be a crucial factor and answered the first question in the negative. The Judge went along with him. The sole question, it seems however, should have been how long the building was occupied as a single dwelling house.
Whether “intensification” amounting to a material change of use that can be enforced against has over the years been questioned.
In Kensington and Chelsea RBC v. Secretary of State for the Environment (1981) JPL 50the Borough Council had served an Enforcement Notice alleging a material change in the use of a garden adjacent to a restaurant for the purpose of a restaurant. On appeal, the Inspector had decided that the planning unit comprised the restaurant and the garden, so there was no breach of planning control in using the garden as ancillary to the restaurant. The Borough Council did not appeal from that part of the Inspector’s decision but they complained that the Inspector had erred by failing to consider the council’s alternative argument that there has been a material change of use by intensification of the restaurant use. In dismissing the Appeal Donaldson LJ stated “It was much too late no doubt to suggest that the word “intensification” should be deleted from the language of planners but it had to be used with very considerable circumspection, and it had to be clearly understood by all concerned that intensification which did not amount to a material change of use was merely intensification and not a breach of planning control”.
In Robert Fidler v. (1) First Secreteary of State (2) Reigate and Banstead BC (2004) EWCA Civ 1295 the Appellant (F) appealed against Enforcement Notices requiring the cessation of specified business uses at the appeal site. The appeal site consisted of two groups of former farm buildings and two linked open areas or yards. When F had acquitted the site in 1985 the buildings and yards were used for a variety of uses including agricultural. By 1994 the buildings and yards had become one planning unit with a mixed use. Over the ten year period from 1991 the uses had remained fairly constant being a mixture of uses falling within classes B1, B2 and B8 of the Town & Country Planning (Use classes) Order 1987 i.e. business use, general industrial use and storage or distribution use. The Local Authority had served an Enforcement Notice in 1995 in respect of a use which subsequently ceased. In 2001 and 2002 the Local Authority had served a number of Enforcement Notices. On Appeal the Planning Inspector upheld notice A requiring two buildings on the site be returned to their original condition and notice 1 requiring cessation of all the existing uses of the site except various agricultural uses. The Judge upheld the Inspector’s conclusions except in relation to the starting date of the ten year period required to establish immunity from enforcement under one of the Notices under the Town & Country Planning Act 1990 S. 171B(3) on the basis that it was possible that that might have affected the result he remitted the appeals for re-determination. F submitted that (1) the Inspector was wrong to hold that there had been fundamental changes at the appeal site between 1991 and 2001 amounting to a material change of use; (2) the 1995 enforcement notice against one use of the site was a case of “under-enforcement” since the Local Authority then knew of the other activities on the site and the failure to enforce against them led to deemed planning permission for them under the Town & Country Planning Act 1990 S.173(11) HELD:
(1) There were no grounds for criticism of the Inspector’s conclusions on the change of use or the Judge’s rejection of the appeal on that issue. It was clear that there could be a material change of use resulting from changes in intensity which affected the overall character of the use even though the descriptions of the uses did not change. The inspector was not limited to considering whether the generic descriptions of the uses in 1991 differed from those stated in the Enforcement Notice. He correctly considered whether there had been a change in the character of the use which was a matter of fact and degree for his judgment and gave rise to no issue of law. Similarly whether the extension of an existing use on to other land resulted in the creation of a new planning unit and a material change in the unit considered overall was matter of fact and degree for the inspector. The inspector did not wrongly rely on “intensification” as a separate legal test. The inspector was right to hold that the Uses Classes Order was of no assistance to F because the Order had no application to a mixed use which did not itself fall within any class. The erection of a building as such might not give rise to a change of use but the character of activities on a site might be materially affected by the nature of the buildings on the site as the inspector found. That was a matter of fact and degree for him. The inspector was fully entitled to hold that there had been a substantial change in the character of the use during the ten year period.
(2) The Judge was right that S.173(11) only applied to activities included in the description of the breach in the Enforcement Notice. Even if the Local Authority was aware of other non-agricultural activities on the site they were not referred to in the Notice. An Enforcement Notice could not require an activity to cease unless it was part of the breach of planning control identified in the Notice itself.
In the leading case of Swale Borough Council v. First Secretary of State and R. Lee (2005) the Appellant Local Authority appealed against the refusal to quash a decision of an inspector appointed by the First Respondent Secretary of State granting the Second Respondent (L) a Certificate of Lawfulness in relation to his occupation of a barn as a dwellinghouse. L had carried out works to the barn with the intent ion of using it as a residential property. His application for a Certificate of Lawful Use was refused by the Local Authority, which subsequently served an Enforcement Notice. The Inspector quashed the Enforcement Notice and granted a Certificate of Lawful Use of the barn for residential purposes on the basis that the barn had been used for residential purposes for a period long than four years and, as such, the time for action had expired. An Application to quash that decision was refused. The Local Authority submitted that the Inspector had adopted an incorrect approach when deciding whether there had been four years’ continuous use of the barn for residential purposes.
HELD:
Whether a building was being used for a particular purpose was largely, but not wholly, a question of fact. The Inspector had to adopt the law to decide the legally correct question, namely whether the barn had been used for residential purposes continuously for a four year period preventing the Local Authority from serving an Enforcement Notice. The Inspector found that use had begun more than four years previously without a significant break. On the evidence the Inspector had failed to apply the correct test. There were substantial periods when the barn was not occupied for residential purposes. The fact that the barn was not put to other uses and that once initial repairs had been carried out it was available for residential use was irrelevant.
In the leading case of Thurrock Borough Council v. Secretary of State for the Environment Transport and the Regions(2002) there were appeals by the Secretary of State for the Environment Transport and the Regions and the landowner (“H”) from the decision of Newman J. by which he allowed appeals by the Local Planning Authority (“the Council”) from a decision of the Secretary of State acting by his Inspector and upheld two Enforcement Notices served by the Council on (“H”) in 1999. The first Notice alleged an unlawful change of use from domestic and agricultural purposes to use for domestic purposes and for an airfield and the storage of aircraft. The Inspector allowed H’s Appeal from that Notice because there had been commercial use of the land as an airfield between 1981 and at least 1983, and which the Council had failed to establish had been abandoned before 1989, with the consequence that the Enforcement Notice had been served more than ten years after the change of use and was out of time. The second Notice alleged the unlawful laying of a concrete base and the erection of a metal framed building (“the hangar”) on that base. H’s appeal from that Notice was allowed on the ground that, even if the Notice were upheld, H could erect a new hangar within the curtilage of his home, which would be more harmful to the green belt than the existing hangar and that he was likely to take such a course (“the fallback position”). The Judge held that (i) the Inspector’s approach regarding the first Notice was wrong in that he had treated an unlawful change of use as though it was an unlawful accrued use and had failed to carry out sufficient analysis of the character and intensity of the present use for the whole of the relevant ten year period; and (ii) there had been no evidence that H would adopt the fallback position and the Inspector’s consideration of the issue of whether the erection of a hangar would be reasonably incidental to the enjoyment of H’s home was inadequate and the reasons for his conclusion were not sufficient clear.
HELD:
(1) This Court agreed with the Judge with regard to the first Enforcement Notice that the Inspector appeared to have misunderstood the decision in Panton & Angor v. Secretary of State for the Environment, Transport and the Regions & Ors (1999) Times January 21 1999. He had, in effect, reversed the burden of proof by requiring the Council to establish that the material change of use had been abandoned before 1989, whereas it was for H to prove that the unlawful activity had continued until that date. There was no such thing as a presumption of continuance in planning law for a use that had commenced as a result of a material change of use but which had ceased to be an active use before any accrued planning right had arisen. It followed that the Judge was right to restore the first Enforcement Notice.
(2) This Court agreed with the Judge’s reasoning regarding the second Enforcement Notice.
Appeals dismissed.
