Partner Karen Jones, in our Planning & Environmental law team, explains when enforcement action should be taken.
We have previously published blog articles in respect of breaches of planning and possible enforcement action by a local planning authority. A recent appeal decision demonstrates clearly that enforcement should only be taken where there is at that time a breach of planning and it is expedient to do so.
In 2015 planning permission was granted by the London Borough of Bromley for a two storey side extension with roof alterations to the front of the property.
The applicant subsequently built an extension but not in accordance with the plans. The applicant applied for retrospective planning permission which was refused by the Council. The reason for the refusal was:
“The proposed revisions to the original application have the potential for the two storey side extension to become severed and used as a separate dwellinghouse which would result in a cramped form of development, out of character with the area”
The Council served an enforcement notice requiring the demolition of the two storey side extension.
During the course of the appeal the Council accepted that there was a valid fallback position (the 2015 planning permission) and that the external differences between the two schemes were minor.
The Inspector found that development did not have an adverse effect on the character and appearance of the area. The ground ‘a’ appeal succeeded and planning permission was granted.
It was clear to the Inspector that the main concern of the Council was the potential for the extension to be severed from the main property and used independently as a separate dwellinghouse. The Inspector commented that “whether or not the extension may be subject to a change of use in the future [was] not relevant to” the assessment of whether planning permission should be granted.
The appellants applied for costs claiming that the Council behaved unreasonably by serving an Enforcement Notice in respect of a possible change of use, a future event. This resulted in the appellants incurring the necessary costs for appealing the Enforcement Notice.
The Planning Practice Guidance provides that where “a party has behaved unreasonably, and this has directly caused another party to incur unnecessary or wasted expense in the appeal process, they may be subject to an award of costs”.
The Inspector allowed the application for costs. The Inspector found that the reasons for enforcement action were based on conjecture. No change of use had occurred and this was recognised by the Council. The Council’s concerns about the extension being used as a separate dwellinghouse were based on a potential future event. If that event occurred then enforcement action could be taken at that time.
Commentary
The case serves as a reminder to local planning authorities to give proper consideration to the actual breach of planning. Enforcement action should only be taken where there is a breach of planning and it is expedient in the circumstances to take such action. In considering whether it is expedient to take such action local planning authorities should have regard to the development plan. The Council in the above appeal clearly took into account matters which did not at that time constitute a breach of planning. The actual breach of planning was minor and this was accepted by the Council during the appeal.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
