Withdrawing a planning Enforcement Notice

Introduction

Planning Enforcement Notices do not go away on their own. I am often contacted by clients who are concerned about the existence of a planning Enforcement Notice on land or property that they own or have an interest in. It may be that they have complied with the terms of a planning Enforcement Notice or that they purchased land with an existing notice upon it. Submissions for the withdrawal of a notice can also be complimentary to or an alternative to an appeal against the notice. Such an appeal can be very expensive and time consuming. Alternatively, some clients miss their opportunity to appeal the notice due to lapse of time but believe that the notice was wrongly issued and would want to made representations to the Local Authority that the notice should be withdrawn. Breach of a notice is a criminal offence and the existence of a notice upon the land can have an adverse effect upon its market value so it is often expedient to have the notice removed from the planning enforcement register.

What is a planning Enforcement Notice?

A planning Enforcement Notice is a formal notice issued by a local authority under s179 of the Town and Country Planning Act 1990. A notice can demand that land or property is in a certain state or used in a certain way. This can be both restrictive and prescriptive- for example to stop suing a domestic premises for business purposes or to remove unauthorised development.

Who does a planning Enforcement Notice effect?

Planning Enforcement Notices attach to the land upon which they apply not to the person who has caused the planning breach. Anyone who owns or has an interest in the land may be effected by the terms of the notice.

How long does a planning Enforcement Notice last?

A planning Enforcement Notice attaches to the land indefinitely. Just because the notice has been complied with does not mean that the notice will cease to have effect.

Does a planning Enforcement Notice show on Local Authority searches?

Yes. A planning Enforcement Notice should be uncovered by a solicitor or anyone else conducting a local authority Land Charges search. The existence of a planning Enforcement Notice can have a detrimental effect upon the value of property.

Can I apply for a planning Enforcement Notice to be withdrawn?

Yes. With suitable evidence and upon suitable grounds it is possible to persuade local authorities to withdraw a notice. An acceptable alternative is to get written confirmation of compliance which can satisfy a purchaser or other interested party that there is no danger of enforcement.

What are the risks of applying for a planning Enforcement Notice to be withdrawn?

If you are still in breach of an Enforcement Notice it may be that the Council is not aware or that they have failed to act on the breach. Bringing the Notice to the Council’s attention in circumstances where there is an ongoing breach ca give rise to a risk that the Council will bring enforcement action. If you are unsure about this, it is advisable to seek specialist legal advice.

How do you go about requesting that the Enforcement Notice will be withdrawn?

This will be by way of an application to the Local authority. An application can be lodged and a small fee is payable. You may wish to get specialist legal advice as to the contents of the withdrawal application and the evidence that is submitted in support as the application will be considered in light of statutory and policy considerations that can be quite complicated.

There is no statutory test for consideration of whether a notice should be withdrawn and the case should be treated on its merits depending on the terms of the Notice and if that breach may happen again. The Local Authority will also look at any effect of harm arising should the breach re-occur.

In my experience an extant Enforcement Notice will likely be withdrawn if there is no chance that the breach would re-occur. Sometimes planning permission applies to the property or the development would be allowed under permitted development rights, in these circumstances s180 of the Town and Country Planning Act 1990 specifically states that it is not necessary for the Enforcement Notice to be withdrawn, but it is normally possible to persuade a Local Authority to do so if the application is properly drafted.

How do councils deal with an application to withdraw a Planning Enforcement Notice?

When the application has been lodged the Council will check to make sure all relevant information has been submitted. Once this has been received, as well as the applicable fee, the case will be assigned a case officer and the Council will issue an acknowledgement letter. The case officer will then investigate and provide a response. This may involve a meeting with the applicant and their legal representatives and a site visit. A decision will then follow.

What can I do if the Council refuses my request to withdraw an extant Enforcement Notice?

There is no right of appeal to the Local Authority but under certain circumstances the decision could be appealed by way of judicial review of the decision to the High Court. This would have to be on specific grounds such as a failure to follow policy or if the decision was legally unreasonable. You should seek specialist legal advice if you are considering such an application.

How long does it take for a council to determine a withdrawal application?

This will vary from Council to Council but in my experience it is reasonable to expect a decision in around 2 months from the date of application.

If you are considering lodging an application to withdraw a planning Enforcement Notice it is advisable to seek specialist legal assistance. Quentin Hunt is an award winning Barrister who specialises in Planning Enforcement work. He accepts instructions directly from members of the public. If you require expert advice and assistance you may contact Quentin for a free no obligation conversation about your case.