LURA 2023 and amendments to the planning enforcement powers
William Upton KC reviews the package of enforcement power amendments contained in the Levelling Up and Regeneration Act 2023 (LURA).
We are still in a period of flux, as the consultation regarding the revisions to the National Planning Policy Framework (NPPF) has just closed. The stated intention is that the Government will introduce the revised NPPF before the end of the year. They also have the use of LURA powers as part of their planning reform agenda - whilst the Infrastructure Levy idea has gone, it looks like we will see the use of NDMPs (National Development Management Policies) yet. In the meantime, the amendments to compulsory purchase and enforcement powers are available already.
The enforcement ‘package’ set out in LURA for England was brought into force, on 25th April 2024, subject to transitional provisions – see in particular Regulation 3 of S.I. 2024/452 (*). Regulations 5 to 9 contain the important transitional provisions. It would be interesting to see what effect they will have – although the lack of actual resources may be the biggest barrier to enforcement. Given the inevitable time it takes to determine an appeal, the Appeal Decisions that are being published now still concern enforcement notices served before 25 April.
Most importantly – the time period in which LPAs can take enforcement action against unauthorised development in England has been extended from 4 to 10 years (s.115 of LURA amends section 171B(1)and (2) of the 1990 Act). A single 10-year tariff will apply to all breaches of planning controls. But the transitional provisions in SI 2024/452 are also important on this. Different time limits for enforcement will continue to apply to breaches of planning control that occurred before 25 April 2024. The 10-year limit will only apply where the alleged operational development was “substantially completed” on or after 25 April 2024, or where the date of an alleged change of use to a single dwellinghouse was on or after 25 April 2024.
The amendments should help avoid the Murfitt problem that you can only require the removal of operational development work (once it has been on the land for 4 years) where it is deemed “ancillary” to the change of use. Murfitt was recently upheld in SoS for LUHC v Caldwell [2024] EWCA Civ 467, where the LPA was trying to use an enforcement notice to remove a bungalow.
In addition, Regulation 3 of S.I. 2024/452 brought into force other useful amendments. The LPA now has the ability to use a temporary stop notice for a longer period, from 28 days to up to 56 days (amending s.171E of the TCPA 1990). This will provide more time for a local authority to investigate a suspected breach of planning control.
There is also a new power for a LPA to issue an “enforcement warning notice” asking the person concerned to submit a retrospective planning application within a specified period (a new section172ZA of the TCPA 1990). It must appear to the LPA that “there is a reasonable prospect that, if an application for planning permission in respect of the development concerned were made, planning permission would be granted”. Usefully, issuing such a notice will constitute taking enforcement action for the purposes of the ‘second-bite’ provisions. Curiously, these Enforcement Warning Notices are referred to as an “EWA” in the press briefing from PINS (19 April 2024, gov.uk). One to add to the acronym dictionary it seems.
When it comes to any appeal against an enforcement notice, the options for the appellant have become a little more limited. Amendments have been made to section 174 of the TCPA 1990, reducing the ability to lodge a ground (a) appeal against an enforcement notice – where an application for planning permission has already been made to regularise the breach. These amendments do not apply to appeals against enforcement notices that were issued, and not withdrawn, before 25 April.
There is also a new power given to the Inspector, to dismiss an appeal in relation to an enforcement notice, or an appeal relating to a lawful development certificate, where it appears that the appellant is causing “undue delay” to the appeals process (s.119 LURA amends ss. 176 and 195 of the TCPA 1990). This power lies in the hands of PINS – and will lead to a notice being given that the appeal will be dismissed unless the appellant takes, within the period specified in the notice, such steps as are required “for the expedition of the appeal”. This adds to the power they have (on notice) to dismiss an appeal if the appellant fails to submit supporting evidence within the prescribed time, or to allow an appeal if the LPA fails to comply with any requirement of the regulations.
There is also an encouragement to take breaches of planning conditions, and amenity notices, more seriously. The LURA amendment see an increase in the level of fines for breaches under sections 187A and 216 of the TCPA 1990 (by s.120, LURA). These concern the offence for the failure to comply with a breach of condition notice, and the failure to comply with a section 215 notice (amenity notice). They were set at a pretty measly Level 3 before this.
On the listed building side, the LPA can now use a temporary stop notice for unauthorised works on a listed building (a new s.44AA). The changes also saw an upgrade to the ability to use a notice where a building needs protection before it can be listed. Regulation 4 of 2024/452 brings section 105 of the 2023 Act into force on 25th July 2024 regarding the use of building preservation notices. It amends section 3 of the Listed Buildings Act to require the LPA to consult with Historic England before serving a building preservation notice (s.3(1A)). It also amends section 29 of the Listed Buildings Act to remove the right to claim compensation for building preservation notices in England.
William Upton KC is a barrister at 6 Pump Court.
(*) [The Planning Act 2008 (Commencement No. 8) and Levelling-up and Regeneration Act 2023 (Commencement No. 4 and Transitional Provisions) Regulations 2024/452]
