A look at planning enforcement investigations and your potential next steps

We regularly represent clients facing enforcement action. We appreciate that the initial contact from planning enforcement can be quite a nerve-wracking experience, and this article seeks to set out the aims of this type of planning control, some of the potential next steps which may be available to you, and how a planning consultant can help. 

What constitutes a breach of planning control?

This is defined in the Town and Country Planning Act 1990, Section 171A, as:  

(a) carrying out development without the required planning permission; or

(b) failing to comply with any condition or limitation subject to which planning permission has been granted.

Examples of a breach of planning control in practice include:  

• Development that has planning permission but hasn’t been built out in accordance with the approved plans; 
• Not complying with the conditions or the terms of a legal agreement attached to a planning permission; 
• Material changes of use, building work and engineering operations that have been carried out without first obtaining the necessary planning permissions;  
• Ignoring or failing to comply with the requirements of a planning legal notice, such as enforcement notices, breach of condition notices and stop notices.  

First contact from the planning enforcement team – what might it look like?

Typically, a Council will first investigate a breach of planning control and work with you to seek a solution. This could take the form of an initial email or letter seeking to set out what they understand to be the breach, a suggested remedy or further questions and a time limit to respond by.  Alternatively, communication may take the form of a more formal Planning Contravention Notice (PCN). A PCN is a document that you must fill in and return to the Council to help them in obtaining information about the alleged breach of planning control.   

Whatever situation you find yourself in, if you have received contact from the Council’s enforcement team then the most important things to remember are:  

1. Don’t ignore it! If you do not communicate with the council then they may take formal action and once an enforcement notice takes effect, your options become limited; 
2. Remember enforcement action is discretionary – early intervention and negotiation is generally preferable to taking the case to appeal. 

It is important that you seek professional advice and swiftly.  The planning system exists to control the development and use of land in the public interest and Council’s view enforcement action as a crucial component of controlling that development.  Therefore, all reports of possible breaches of planning control are taken seriously and investigated promptly. Plainview Planning can guide you through the process, investigate the matter with you and help to navigate a way to resolution.  

Potential planning strategies for rectifying an identified breach of planning control

1. Submit a retrospective application; (read more) 
2. Submit a Lawful Development Certificate; (learn more) 
3. Negotiate with the enforcement officer; (read more). 

Option 1 – Retrospective Planning Application

This option will only be available to you provided that the Council has not formally served an enforcement notice . A retrospective planning application is usually the preferred course of action where a development has been found to be unlawful, but a good planning argument can be made for its retention.   

Typically, an enforcement officer will give you this option regardless of whether there is planning potential or not. We recommend that you seek professional advice so that you have an understanding of the likely outcome of the application. Plainview Planning can advise you of the potential of achieving planning permission with reference to the development plan and possible precedents set by existing approved development in the locality.  

Option 2 – Lawful Development Certificate

Like retrospective planning, a LDC (otherwise known as a Certificate of Lawfulness) application can only be successfully made provided an enforcement notice has not been issued. It may be an option that the Council give you if it is clear that the breach of planning occurred a long time ago.  

A LDC is a legal document issued by a local planning authority. It is designed to confirm that a particular use of land, a building, or any other form of development is lawful under planning regulations. Lawful development is development against which no enforcement action may be taken, for which planning permission is not required or where planning permission has been granted and development undertaken in accordance with it. 

Development that was built without the necessary planning permission in place, or which has deviated from approved plans will become immune from enforcement action under current legislation after 10 years. In some circumstances, it becomes immune after 4 years depending on the type of breach and when that breach took place.  This type of application is purely evidence based, and the onus is on the Applicant to provide sufficient evidence to confirm that the development is immune from enforcement action. You must demonstrate that “on the balance of probability”, enough time has passed since the breach occurred that enforcement action cannot be taken.  

If you need to understand how this will affect you in real terms then contact our planning team who will be able to advise on the next best steps for you, be it a planning application, negotiation, a lawful development certificate or an appeal.   

Evidence that you might include within a certificate of lawfulness application could include: 

• Dated photograph (pictures on your phone have a time stamp); 
• Google Earth Imagery; 
• Invoices relating to construction works or ongoing use; 
• Any dated documentation that supports your arguments;  
• Letters of support from neighbours (if they are willing to help); 
• Statutory declarations. 

With LDCs first-hand accounts can be persuasive but it is no substitute for corroborating evidence such as invoices and photographs. Even if you consider your development to be immune from enforcement action, it may be that your evidence is weak.  One of our key roles in this type of application is to review the quality of evidence you might have.  

Option 3 – Negotiation with the enforcement officer

If you find yourself in a situation where neither option 1 nor option 2 are suitable, then negotiating with the Council and seeking to address the planning breach outside of formal enforcement proceedings can make life easier for all parties. Sometimes Councils will give you the option to remedy the breach and simply require confirmation once that has taken place.  

However, be aware that the steps required to remedy the beach can be subjective. The Council may ask more of you than is reasonable in planning terms. As such, obtaining professional advice before engaging in conversations with the Council is in your best interests, as we can negotiate with enforcement officers on your behalf and ensure that you only need to do what is reasonable to remedy the breach.  

Options once an Enforcement Notice has been served

A formal enforcement notice is usually a last resort. The council can serve one where they believe it is expedient to do so, in relation to unauthorised development.  The notice might request the planning breach to be remedied by alteration, demolition or ceasing an unauthorised use.  You have the right to appeal to the Planning Inspectorate against such a notice.  

If an enforcement notice has been served, then your only options are to either comply with the requirements of the notice or to make an appeal. 

Enforcement Appeals

When an enforcement notice is served, it doesn’t come into effect for a period of time – this varies depending on a number of factors.  This is the window of time that you have in which to make an appeal. A robust appeal can take several weeks to prepare so it is essential that you seek professional assistance immediately.   

Unlike appealing a refusal of planning permission, an enforcement notice can be appealed under several different grounds. Some are legal grounds and others are subjective grounds.  

There are 7 grounds of appeal:  

• Ground A: That retrospective planning permission should be granted; 
• Ground B: that the allegation has not occurred as a matter of fact; 
• Ground C: that the allegation does not need planning permission; 
• Ground D: That the allegation is immune from enforcement action due to the passage of time; 
• Ground E: That the enforcement notice was served incorrectly; 
• Ground F: That lesser steps could resolve the alleged breach; 
• Ground G: That you need more time to comply with the enforcement notice.  

Not all grounds will be applicable to a single case but we can advise which will be most suitable for your particular breach.  

About us

We are Plainview Planning, now part of McLoughlin Planning – a solutions orientated, experienced and knowledgeable team of planning consultants.  If you need professional and informed planning support with your development project, then contact our team via enquiries@plainview.co.uk, or call us on 01242 501003, providing the site address and a brief overview of your project. We look forward to helping you.

We value your privacy and any information which you provide will not be shared outside of our company and will only be used in relation to your enquiry