Monday, April 06, 2020
s179 Town and Country Planning Act Enforcement Notices- frequently asked questions.
Barrister Quentin Hunt looks at questions that are commonly asked in Planning Enforcement Notice cases.
What is a Planning Enforcement Notice?
A Planning Enforcement Notice is a legal process by which a Local Authority can require the owner or occupier of land to cease a suspected breach of planning control. This most commonly relates to the removal of buildings, structures or alterations that have occurred without planning permission or the use of a property or land in a way which is not authorised.
The Notice itself carries legal force in that failure to comply with it is a criminal offence. The Notice will normally require the person to whom it is addressed to take steps to remedy a breach of planning control. The Notice itself will require the person to take positive steps to comply with the notice and will specify the time-frame in which compliance must take place. The most common types of condition an Enforcement Notice will specify would be to:
- Cease an activity that is being undertaken in the property or on the land
- Reinstate a building or part of a building which has been removed or demolished
- Alter or remove a building in line with existing permissions
The above list is not exhaustive and there is a wide flexibility for local authorities to require any reasonable steps to be taken to bring a breach of planning control within the law.
Is there a Time Limit for service of a Planning Enforcement Notice?
Yes, there is. Under the Town and Country Planning Act 1990 a local authority must serve an Enforcement Notice within specified time periods as follows:
• If the breach involves the construction or alteration of a structure, or if it relates to change of use of a building to a residential dwelling then the time period is 4 years; or
• If the breach relates to any other change of use, or if it relates to a breach of a planning condition, then the time period is 10 years.
This is subject to a number of caveats under the Act and if you think that a Notice could be challenged under this ground it is advisable to seek legal advice to better understand whether the law applies in your case.
Does a planning enforcement notice have to be served on me personally?
Section 172 of the Town and Country Planning Act 1990 requires that a copy of an enforcement notice will be served ‘on the owner and on the occupier of the land to which the notice relates’ and also upon ‘any other person having an interest in the land’, that being an interest which, in the opinion of the local authority is materially affected by the Notice (for example a mortgage company). The Notice must be served no more than twenty-eight days after the date of issue and no less than twenty-eight days before the effective date specified in the Notice.
Do not think that a Planning Enforcement Notice can be ignored just because service may have been defective in some way. The defence for failure to comply with a Planning Enforcement Notice on the basis of non-service is contained within s179(7) of the Town and Country Planning Act 1990 and states that:
(a) a person charged with an offence under this section has not been served with a copy of the enforcement notice; and
(b) the notice is not contained in the appropriate register kept under section 188,
it shall be a defence for him to show that he was not aware of the existence of the notice.
Therefore, even if the Notice is not properly served upon a person they can only succeed on the basis of a s179(7) defence if the Notice was not contained upon the register maintained by the Local Authority and the person can show that they were not aware of the existence of the Notice. Experience shows that most local authorities are very good at keeping their register up to date and as such this defence is often difficult to prove.
Do I have to comply with a Planning Enforcement Notice?
When you are served with a Planning Enforcement Notice it will specify the date by which compliance should be achieved. The imposition of the Notice can be appealed (see below). If the Enforcement Notice is not appealed, then it will take effect and the steps specified within the Notice must be complied with within the specified time period. If the Notice is not complied with then a criminal offence may be committed under s179 of the Town and Country Planning Act 1990.
What should I do if I receive a Planning Enforcement Notice?
Do not bury your head in the sand! You will have a period of 28 days to appeal against the Notice. Or you can ask for the Notice to be withdrawn in some circumstances (see a separate blog post here). If you do nothing and the Notice takes effect, then you are obliged to comply with the terms of the Notice within the time limit for compliance. This time limit can vary from one month for minor works to 6 months for certain changes of use or land restoration. Only in exceptional circumstances will a period in excess of 6 months be allowed. If you do then not comply with the terms of the Notice you will be committing a criminal offence, subject to certain statutory defences under the Town and Country Planning Act 1990.
Can I appeal against a Planning Enforcement Notice?
Every person has the right to appeal a Planning Enforcement Notice. Appeals are made to the planning inspectorate. Such an appeals will normally have to be submitted within 28 days of the service of the Notice. If an appeal is lodged, then the requirements of the Notice are suspended while the appeal is considered. The planning inspectorate is an independent body who is not affiliated to the local authority and the appeal will be determined impartially by an inspector.
What are the grounds for appealing a Planning Enforcement Notice?
Grounds for an appeal against an Enforcement Notice can be made under seven separate grounds as outlined in s174 of the Town and Country Planning Act 1990.
The grounds are as follows:
a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;
(b) that those matters have not occurred;
(c) that those matters (if they occurred) do not constitute a breach of planning control;
(d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters;
(e) that copies of the enforcement notice were not served as required by section 172;
(f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;
(g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed.
The specified grounds are legally technical and there are caveats that apply to some of the potential grounds. If you are considering appealing a Planning Enforcement Notice it is recommended that you seek specialist legal advice.
How is a Planning Enforcement Notice appeal determined?
Upon appeal an Inspector is appointed by the Planning Inspectorate (see above). An appeal can be dealt with one of three ways:
- By written representations made to the Inspector.
- By an informal hearing which would be chaired by the Inspector.
- By a Public inquiry. This is the most serious and reserved for the larger cases, it is more legalistic and involves the giving of evidence and cross-examination.
In all cases it is usual for the Inspector to visit the site and neighbours, and speak to other interested parties who will have a chance to be involved in the appeal process.
How long does a Planning Enforcement Notice last?
A Planning Enforcement Notice does not cease to have effect merely because it is complied with. The Notice will remain upon the register and will take effect upon subsequent owners of the property or land in question in perpetuity. In some circumstances a Planning Enforcement Notice will have a detrimental effect upon the value of the property or land to which it relates and in that case it is permissible to make representations to the local authority that the Enforcement Notice should be withdrawn.
What defences are available for failure to comply with a Planning Enforcement Notice?
This is a specialist area of law and it is outlined at some length in a separate post here.
What are the penalties for breach of a Planning Enforcement Notice?
The maximum penalty for an offence contrary to s179 of the Town and Country Planning Act is an unlimited fine or two years’ imprisonment.
If a financial ‘benefit’ is accrued from the breach of planning control, then the Courts have the power to confiscate that benefit post-conviction by way of an order under the Proceeds of Crime Act 2002. It is of note that the amount confiscated will be the turnover of the monies generated by the breach not the profit.
If you have been served with a Planning Enforcement Notice or face prosecution for breach of a Planning Enforcement Notice you may wish to avail yourself of specialist legal representation. Quentin Hunt is a Barrister who specialises in this area of Law. He accepts instruction directly from members of the public and can be contacted for a free, no obligation conversation about your case.