In Focus: Planning contraventions and enforcement – steering clear of the pitfalls

The planning system can be difficult to navigate especially when dealing with what can and can’t be done in rural areas. For example, acts such as moving soil from one area of a farm to another for anything other than agricultural purposes requires planning permission.

So, despite there being no excuse for not knowing the requirements of planning control before embarking on a development – after all, there is plenty of information out there – it is no surprise all manner of schemes, developments, and changes of land of building use occur without the necessary permissions in place.

And when this happens, it is not uncommon for the perpetrators to get a knock at the door when the planning authority gets wind of the breach, which could result in enforcement action.

With that in mind, in this blog we take a look at planning contravention notices and enforcement to help ensure you don’t fall foul of the law.

The UK planning system is governed by the Town and Country Planning Act 1990 which defines a breach of planning control as:

• The carrying out of a development without the required planning permission, or
• Failing to comply with any condition or limitation subject to which planning permission has been granted.

Committing either of these puts the landowner or occupier in contravention of the act and therefore opens them up to the possibility of enforcement.

The majority of farmers and landowners commit breaches through ignorance. They simply didn’t realise that a particular act, such as turning an old and no longer used cow shed into livery stables or levelling off a field by removing soil to provide a level surface for camping, requires planning permission.

Often, they are shocked to find themselves on the receiving end of a planning contravention notice.

But there are other landowners who wilfully contravene the system to avoid the cost, time, and extra work associated with submitting a planning application, or simply because they know that any application they make will be refused, and go ahead with their development regardless.

Unsurprisingly, planning officers take a far dimmer view of this behaviour.

If the planning authority suspects a planning breach has occurred, the first thing they are obliged to do is collect as much information about the alleged breach as possible, as effective enforcement relies on accurate information.

This starts with engaging with the landowner or occupier at the earliest possible opportunity. This is important because it enables planning officers to establish if there has been a breach of planning control and the extent of any harm it may be causing, and to assess how receptive the landowner or occupier is to taking action to remedy the breach.

Much of the information they require will be easily accessible on the planning authority’s own records, site visits and publicly available information, but in the event that the authority cannot get hold of all the information they need or the person responsible for committing the breach is not forthcoming with information, they may choose to serve a planning contravention notice.

A planning contravention notice may only be served where a planning authority believes a breach of control may have occurred and it wants to find out more information before deciding on what enforcement action to take.

It cannot be used purely to undertake an investigation into what activities are being carried out on a particular piece of land.

It may also be used to invite the landowner or occupier to engage positively with the planning authority about how the breach can be remedied.

If you are issued with a planning contravention notice you have 21 days to response. Failure to do so is an offence under the Town and Country Planning Act 1990 and is likely to lead to the authority issuing an enforcement notice.

An enforcement notice is a legal document that requires a landowner or occupier to take a specific action to remedy a breach of planning control. They can only be issued when a planning authority is fully aware that a breach has occurred and should detail what constitutes, in the authority’s view, the breach, and what action is required to remedy it.

The enforcement notice must also include details of how to appeal against the notice, as it is the right of the landowner or occupier to do that.

As with a planning contravention notice, failing to comply with an enforcement notice is an offence. Anyone who does so could face an unlimited fine. On conviction, a planning authority can also apply for a Confiscation Order under the Proceeds of Crime Act 2002 which enables them to recover any financial benefit obtained through unauthorised development.

Often, it is only the worst breaches of planning control that are subject to an enforcement notice and these can be issued at the planning authority’s discretion. How a breach is dealt with in practice tends to depend on the amount of harm the unauthorised development has on the surrounding area and public interest, and the willingness of the landowner or occupier to remedy the situation.

Addressing breaches of planning control without resorting to formal enforcement is generally considered the quickest and most effective way of achieving a satisfactory outcome for both the local authority and the person who has committed the breach. If, for example, the breach is the result of a genuine mistake and the owner or occupier takes immediate action to rectify it, formal enforcement is rarely required.

Other areas where formal enforcement is not recommended include:

• There is a trivial or technical breach that results in no material harm to the surrounding area
• The development is acceptable on its planning merits and formal enforcement would serve only to regularise the development

Where the planning authority considers that a retrospective planning application would be the best way to regularise the development.

Planning authorities can invite retrospective planning applications if they consider this is the best way to regularise an unauthorised development. If this is the case, the landowner or occupier will be invited to submit a planning application as soon as possible, as failing to do so may lead to an enforcement notice being issued.

It is important to understand that being invited to submit a retrospective planning application in no way guarantees it will be granted. It may be granted with conditions or it could be refused. The landowner or occupier should be aware that it is the responsibility of the planning authority to consider the application in the same way it does any other.

It is also important to understand that a planning authority can decline to determine a retrospective planning application if an enforcement notice has already been issued, so submitting one is not a way of getting around an enforcement notice.

Although breaches of planning control are taken very seriously by planning authorities, there is a specific window in which an authority has to take action before the development becomes regularised by time.

In most cases, the development becomes immune from enforcement if no action is taken within four years of any operational development (which many include the erection of a new building), within four years of the change of use of a building into a dwelling, and within 10 years in relation to any other material change of use or breach of condition.

However, there are some exceptions to this. There is no time limit on the breaches of planning control carried out on a listed building, and in the case where a court rules there has been a deliberate concealment of a breach, a planning authority can issue an enforcement notice after the time limit for action has elapsed.

As you can see from this relatively shallow dive into planning contravention notices and enforcement notices, it is a complicated area of planning law that can be difficult to navigate. For expert advice on avoiding the pitfalls of planning control, or if you feel you might be in breach and want to find out what your options are, feel free to get in touch.