Planning enforcement has many facets and it is important to appreciate the implications of actions taken by a Local Planning Authority in connection with your land or development. The elements to be aware of are:
- Planning Contravention Notice
- Enforcement Notice
- Stop Notice
- Proceeds of Crime and Confiscation Orders
- Breach of Condition Notice
- Untidy Land Notice under Section 215 of the Town and Country Planning Act 1990
Planning Contravention Notice
A Planning Contravention Notice or a Notice under Section 330 of the Town and Country Planning Act 1990.
The documents are often a pre-cursor to formal enforcement action by the Local Planning Authority and will be served on the persons who have an interest in the land namely the owner, the lessee, and any mortgagee that you may have.
The notice seeks to gain a full set of information in relation to the alleged planning contravention and may pose a series of questions that you are requested to answer in response to the planning contravention notice.
It is important at this stage to be mindful that this is a document, which if you enter information or make admissions could be used by the Local Planning Authority as part of a further investigation and/or enforcement action and potential prosecution.
Therefore, it is important to seek legal advice as to the responses that you make in such a notice.
You should also be mindful that the failure to return the notice within the timeframe set out in the notice is also an offence which can be prosecuted through the Magistrates Court for non-return of the notice.
Whilst this may not seem too draconian, it could result in an individual or a company having a criminal record which could adversely affect their credit rating an ability to raise funds.
If you receive a planning contravention notice or a Section 330 request, please feel free to contact the team member set out below for discussion and advice.
An Enforcement Notice is served by the Local Planning Authority when they consider that either operational development has taken place without consent, or when there has been an unlawful change in use of a land or a building, or when development is taking place in breach of conditions that were imposed with the original permission.
An Enforcement Notice will be served on all persons who have an interest in the site – freeholder, leaseholder, tenants and/or any mortgagees.
The Enforcement Notice itself sets out the series of steps that the Local Planning Authority require you to take to abate the breach of planning control and it normally gives a time limit within which you must complete those works.
The Enforcement Notice normally comes into effect within 28 days of service of the notice and if you wish to appeal against the notice an appeal must be lodged with the Planning Inspectorate before this timeframe elapses. If an appeal is not lodged within the relevant timeframe, then the notice will become effective and not capable of an appeal.
If an appeal is lodged against an Enforcement Notice, then this has the effect of suspending the Enforcement Notice until the appeal is determined by the Secretary of State. The grounds of appeal are numerous and can relate to the fact that there is no breach of planning control, that the alleged breach of planning control is immune from action due to the passage of time, or that the actions set out in the Enforcement Notice is permitted development.
We can assist in drafting the appeal and appearing as advocate on your behalf at informal inquiries(link to advocacy page)
Should you receive an Enforcement Notice, it is important that you take advice on the same promptly when receiving the notice so that if an appeal is appropriate, there is due time to lodge such an appeal.
Stop Notices/Temporary Stop Notices
There is the ability for the Local Planning Authority to serve either a temporary stop notice or a stop notice to prevent unauthorised development and activity taking place.
It is unusual for a Local Authority to serve a stop notice along with an enforcement notice unless the activity taking place is of such a nature that it is likely to cause severe detriment or impact to neighbours in the vicinity of the activity or other interested parties.
A temporary stop notice is a separate issue which is often served if the local planning authority consider it to be expedient to serve it pending more formal enforcement action. These immediately come into effect and require you to stop the activity or operation immediately.
In relation to stop notices, the failure to comply with a stop notice again provides a Local Planning Authority with the option of taking action by means of a prosecution – initially in the Magistrates Court, but it can be transferred to the Crown Court if the breach is serious.
The receipt of a stop notice is unusual. However, should you receive a stop notice or temporary stop notice, we would advise that an urgent consultation with the team is appropriate so that you could be advised of the best way forward with a view to avoiding further action by the Local Planning Authority and a potential conviction.
Prosecution for Non-Compliance with an Enforcement Notice
In the event that an enforcement notice comes into effect, and you do not comply to carry out the required steps by the due date, then the Local Authority has the option to prosecute those who have not complied with the enforcement notice – initially in the Magistrates Court, or if the case is deemed sufficiently serious, in the Crown Court.
To make decision concerning prosecution, the Local Planning Authority has to consider that such action is expedient and whether it is in the public interest for the prosecution to take place.
There are very limited grounds to seek to defend a prosecution for the breach of an enforcement notice. The most obvious is if the enforcement notice was defective and not served on a person with an interest in land. A further statutory defence is that the person who is the recipient of the notice has done everything within his or her power to comply with the notice. From experience, it is difficult to succeed in these statutory defences and failing a defence based on those grounds, it is difficult to maintain a not guilty plea.
If one is convicted, then the fine is unlimited and is based on the financial means of the defendant. If this is a commercial company, with significant assets then the cost could be substantial in terms of a fine and normally the defendant would be asked to meet the costs of the prosecuting authority.
Once a conviction has been obtained, there is a possibility that the local planning authority will pursue confiscation proceedings. This is mentioned in the next section of the website but put simply, the Local Planning Authority seek to recover from the person who has breached the notice the benefit it has received from breaching the notice. To provide a simple example – if a block of flats have been built without the benefit of planning permission or not in accordance with the drawings and the person who is prosecuted has received the rent, then this rent may be taken as the benefit of such criminal conduct and be recoverable from the person by means of a confiscation order.
We have experience of attending interviews under caution and advocacy in the event of prosecution (link to Advocacy page)
If you are interviewed or given an indication that a Local Authority is considering a prosecution for non-compliance with an enforcement notice then we would advise that you consult the team promptly so that we can appraise you of the situation you are in and advise of the best way forward.