Planning enforcement: the new regime
Kayleigh Chapman analyses new regulations impacting on planning enforcement in England.
The Levelling Up and Regeneration Act 2023 (“LURA”) received Royal Assent on 26 October 2023.
For many of the planning provisions proposed by the LURA, further regulations were required to bring those matters into effect.
For example, changes have been made to the time-limits for local planning authorities (“LPA”) for bringing enforcement action in respect of breaches of planning control pursuant to Section 115 of LURA. These were implemented by the Planning Act 2008 (Commencement No.8) and LURA (Commencement No.4 and Transitional Provisions) Regulations 2024 (“2024 Regulations”).
The 2024 Regulations also brought other sections of the LURA into force – impacting planning enforcement. The changes came into force on 25 April 2024, with new guidance now available: Planning Practice Guidance.
Enforcement appeals – Ground A and delays
Section 118 of LURA curtails the circumstances whereby a Ground A appeal can be made in respect of an Enforcement Notice. A Ground A appeal is made on the basis that planning permission should be granted for the alleged breach enforced against.
Section 118 of LURA prohibits the making of a Ground A appeal where the land, which is enforced against is in England and the enforcement notice is issued at a time after an application for planning permission for the breach has been made.
Accordingly, where previously in certain circumstances a party could have three attempts to secure planning permission - application for retrospective planning permission in respect of the alleged breach, appeal against the refusal and a subsequent Ground A appeal against an Enforcement Notice - that third attempt will no longer be possible.
These provisions only apply where an application has ceased to be under consideration - the application was refused (including non-determination) and no appeal brought, or an appeal was brought and the appeal was dismissed - and the enforcement notice was issued within a period of two years after the day on which the application ceased to be under consideration. The restriction on Ground A appeals in these circumstances do not apply where an enforcement notice was issued on or before 24 April 2024.
Section 119 of LURA seeks to overcome “undue” delays caused by appellants and provides that where the Secretary of State considers that an appellant is responsible for undue delays in appeals against enforcement notices it can issue a notice to the appellant that the appeal will be dismissed unless the appellant takes such steps as specified by the Secretary of State or Planning Inspectorate.
If such steps are not taken, then the Secretary of State or Planning Inspectorate can dismiss the appeal.
These changes also apply to appeals against refusals of Certificates of Lawfulness. The government aim is that these additional powers will only be used in a minority of cases, however, no guidance as to what will be considered an “undue delay” has been provided. The new powers under Section 119 do not apply where an appeal against an enforcement notice was made on or prior to 24 April 2024.
Enforcement warning notices
Section 117 of LURA introduces enforcement warning notices in England. LPAs in Wales already had the ability to issue such notices having been introduced by the Planning (Wales) Act 2015.
The enforcement warning notice can be issued by an LPA where there has been a breach of planning control and there is a reasonable prospect that planning permission would be granted.
It is essentially an invitation to the owner or occupier of land where a breach is alleged to be occurring to submit a planning application for that breach. Where no application is forthcoming the LPA could take further enforcement action, although is not obliged to.
The issue of an enforcement warning notice does not guarantee that permission will be granted.
Temporary stop notices – listed buildings
Section 103 of LURA introduces temporary stop notices (“TSN”) for listed building breaches in England. Such notices were already available to LPAs in Wales following the introduction of the Historic Environment (Wales) Act 2016.
The new power for English LPAs allows a TSN to be issued where works have been or are being executed to a listed building and such works are either not authorised by listed building consent - where required - or are in breach of a listed building consent condition. Where issued, the TSN will cease to have effect after a period of 56 days or, such shorter period specified by the TSN.
It is an offence for a person to breach a TSN, although there is a defence to prosecution.
Compensation is also payable by the LPA in certain circumstances, namely where there has been no breach or where the council withdraws the TSN. Compensation is not payable where the Council withdraws the TSN because listed building consent has been granted for the breach.
Temporary stop notice time limits
Section 116 of LURA extends the period within which temporary stop notices in respect of breaches of planning control, not listed building breaches, have effect from 28 days to 56 days in England.
These changes do not apply to temporary stop notices issued prior to 25 April 2024.
Breach of condition notices and fines
Section 120 of LURA removes the upper limit for fines in England where a person fails to comply with a breach of condition notice and that breach is successfully prosecuted, essentially therefore a defendant could face an unlimited fine for breaching a breach of condition notice. The change to the level of fine only applies in respect of breaches of condition that occur on or after 25 April 2024.
The changes brought in by the LURA and the 2024 Regulations provide LPAs in England with more powers to seek to regularise breaches of planning control or otherwise enforce against them.
The changes further align the enforcement processes available in England to those in Wales, where some powers have been available for many years. The changes to fines for non-compliance with breach of condition notices, in particular, are expected to further prompt the remedying of breaches. It remains to be seen whether these changes will lead to an increase in the levels of fines issued.
Kayleigh Chapman is a planning associate at Shoosmiths.
