Karen Jones and Tatiana Zanré, in our leading Planning & Environmental Law team, explains what to do next if you receive an Enforcement Notice.
One of the most common planning enforcement measures used by Local Planning Authorities (LPAs) is a Planning Enforcement Notice, used to remedy a breach of planning control.
The power to issue an Enforcement Notice is discretionary in nature and can be found under section 172(1) of the Town and Country Planning Act 1990 (as amended) (the 1990 Act). An LPA may issue an Enforcement Notice where they are satisfied:
(a) that there has been a breach of planning control; and
(b) that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations.
Therefore, the LPA has a discretion whether to issue an Enforcement Notice and there is no obligation on the LPA to do so. However, failure to act where there is clear and unacceptable harm could be declared to be maladministration by the ombudsman.
An Enforcement Notice can only be issued where there has been an actual breach and cannot be issued against any anticipated breach of planning control.
Breach of planning control occurs where:
- development without planning permission has been carried out within the meaning of s55 of the 1990 Act, i.e. unauthorised operation, or a material change of use.
- there has been a failure to comply with any conditions or limitation which is subject to planning permission that has been granted.
The power to take enforcement action is subject to certain time limits under s171B of the 1990 Act. S171B has been amended by s115 of The Levelling-up and Regeneration Act 2023 (LURA 2023), which has extended the time in which LPAs can take enforcement action against unauthorised developments in England from four years to ten years. S115 came into force on 25 April 2024 and there are transitional provisions that apply as follows:
- where the breaches of planning control relate to building, engineering, mining or other operations in, on, over or under land and the operations were substantially completed before 25 April 2024; or
- material change of use of buildings to use as a single dwellinghouse which occurred before 25 April 2024.
What is an Enforcement Notice?
An Enforcement Notice is a legal document used to inform the recipient that a breach of planning control has occurred. An Enforcement Notice must tell the recipient what he has done wrong and what he must do to remedy the breach. The recipient must also be able to find out from the four corners of Enforcement Notice exactly what is he is required to do or abstain from doing. Any missing information or vague drafting of the Enforcement Notice will be open to a legal challenge.
The Enforcement Notice will set out the development carried out which the LPA believe constitutes the breach of planning control and the reasons why it constitutes a breach of planning control. The Enforcement Notice will set out the Local Plan Policy that the development is not in compliance with and it will also set out the steps required that the landowner must undertake to remedy the planning breach. A time period for complying with the Enforcement Notice will be set out in the notice and a date when the Enforcement Notice comes into effect. An Enforcement Notice will come into effect on the date specified, unless an appeal is lodged to the Planning Inspectorate.
The LPA must also enclose information on how to appeal the Enforcement Notice and an explanatory note containing information as specified in Regulation 5 of the Town and Country Planning (Enforcement Notices and Appeals) (England) Regulations 2002.
Prior to serving an Enforcement Notice, the LPA may serve a Planning Contravention Notice in situations where the LPA suspects that there has been a breach of planning control and seeks further information from the landowner before a decision on commencing enforcement action is made.
What Happens if I Don’t Comply with an Enforcement Notice?
It is important to comply with any Enforcement Notice served unless an appeal against the notice can be made within the specified timescales. Failure to comply with a notice constitutes a criminal offence under s179 of the 1990 Act. An offence under s179 is triable either way, which means that it can be tried in either the Magistrates’ Court or the Crown Court and may result in a an unlimited fine.
In the most extreme cases, non-compliance with an Enforcement Notice may result in imprisonment. As was in a recent case, a 52-year-old woman has been jailed for 12 months for failing to pay a fine of £167,000 for failure to comply with an Enforcement Notice, which required the removal of stables that had been unlawfully built in the Green Belt. Mrs Carter erected six stables and a mobile home on her land despite having been refused planning permission in 2004. The unlawful development included installing a mobile home with decking for residential use, a large stable block, riding enclosure, hay store, fencing, gates and vehicle access. Mrs Carter had moved into the mobile home and was renting out the stables and equine facilities to a third party.
Bromsgrove District Council issued an Enforcement Notice in June 2015, that required the removal of unlawful structures by 21 October 2015. Instead of complying with the Enforcement Notice, Mrs Carter added another larger mobile home. Bromsgrove District Council prosecuted Mrs Carter for not complying with an Enforcement Notice. Mrs Carter failed to attend the trial at Kidderminster Magistrate Court and was found guilty in her absence.
On a warrant, Mrs Carter appeared for the sentencing hearing at Kidderminster Magistrates Court. The District Judge, in sentencing Mrs Carter, considered any financial benefit that she had accrued or could have likely to have accrued in connection with the unlawful development, and the court fined her £160,000. Mrs Carter was also ordered to pay Bromsgrove District Council costs of £7,258 and a victim surcharge of £170.
Mrs Carter was given a 12-month suspended sentence last November and the court gave her a final chance to pay the fine. The prison term was activated by the District Judge who said that he was not satisfied that all efforts had been made to make the payment.
Summary
This case demonstrates and serves as a warning of what could happen if you flout planning rules. It further highlights the consequence of a failure to comply with an Enforcement Notice, which could lead to a criminal conviction and unlimited fine, and in a case such as this, imprisonment.
It is therefore important that if you have been served with an Enforcement Notice, you take appropriate legal advice on the legal implications of the notice.
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.
