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Breach Of Planning Control Advice | Charrette Law
Planning permission is a critical component of the built environment in England and Wales, ensuring developments are carried out with foresight and consideration for both policy and community. However, breaches of planning control are fairly commonplace, whether inadvertently or otherwise. It is therefore essential for property owners, developers, and associated professionals to be informed about the intricacies of a breach of planning control and to seek appropriate advice when issues arise. This comprehensive guide, provided by Charrette Law, will illuminate the legal and practical aspects of dealing with breaches of planning control and outline the best courses of action to take if you are confronted with such a situation.
Understanding Breach of Planning Control
Before delving into the procedures and advice related to breaches of planning control, it is necessary to first define what the term means. A breach of planning control, as defined by the Town and Country Planning Act 1990, involves carrying out development without the necessary planning permission or failing to comply with any condition or limitation subject to which planning permission has been granted. It can occur in various forms, including unauthorised building work, changes of use, or non-adherence to previously imposed planning conditions.
The Nature of Planning Control Breaches
Not all breaches of planning control are intentional. Many arise simply due to misunderstanding the requirement for planning permission, especially when changes appear minor or innocuous. However, the legal implications of any breach can be consistently significant. Local Planning Authorities (LPAs) are tasked with monitoring development activities within their jurisdiction and act as the primary enforcement body when breaches are suspected or identified.
Breaches may involve:
- The erection, extension, or alteration of a building without consent
- A change in the use of land or buildings without authorisation
- Non-compliance with conditions stated in planning permissions
- Demolition of listed buildings or structures in protected areas without permission
It is worth noting that not every minor deviation from approved plans will provoke enforcement action, but the LPA retains absolute discretion to intervene where it is deemed expedient to do so.
Enforcement: How LPAs Respond to Breaches
When a breach is suspected, the relevant LPA will typically initiate an investigation. The property owner or occupier is usually contacted, and the facts are ascertained through a site visit or request for information. Some matters can be resolved informally, without recourse to formal action.
Where the LPA concludes that a material breach has occurred, it may resort to a range of formal enforcement powers. The principal mechanism is the Enforcement Notice. This legal document sets out the nature of the breach, the steps required for remedy, and a timeframe for compliance. Failure to adhere to an enforcement notice is a criminal offence and can result in prosecution.
Other powers at the LPA’s disposal include:
- Stop Notices: Require the immediate cessation of an activity considered harmful.
- Breach of Condition Notices: Target non-compliance with specific planning conditions.
- Injunctions: Sought through the courts for the most serious or persistent breaches.
- Planning Contravention Notices: Used to obtain more information prior to formal action.
Each route has distinct legal and strategic implications, and their deployment depends on the particular facts and significance of the breach.
Responding to an Enforcement Notice
Receiving an enforcement notice is understandably distressing, yet it must not be ignored. Immediate steps should be taken to understand the notice’s terms and consider the available responses. The most appropriate course of action will depend on the nature of the breach, whether there is a genuine planning justification for the development, and the potential for retrospective planning approval.
Key response options include:
- Compliance: Taking remedial actions as specified within the notice, either by removing the unauthorised works or rectifying the breach as instructed.
- Appealing the Notice: The right to appeal is usually available, but must be exercised within strict time limits. Grounds for appeal include arguments such as planning permission should be granted, the alleged breach has not in fact occurred, or that the requirements of the notice are excessive.
- Retrospective Planning Permission: It may be possible to apply for planning consent after the fact. If granted, enforcement may be suspended or withdrawn.
- Negotiation with the LPA: Some situations can be resolved informally if minor adjustments can be agreed upon with planning officers.
Failing to respond appropriately risks escalating penalties, prosecution, and substantial ongoing costs. Therefore, obtaining tailored breach of planning control advice is highly recommended as soon as a notice is received.
Retrospective Planning Permission: When and How?
One common avenue for resolving breaches is the submission of a retrospective planning application. LPAs have the discretion to grant consent after unauthorised works have been completed, providing that the development is appropriate in planning terms and aligns with local and national policy.
When submitting a retrospective application, it is critical to present compelling evidence that the development is acceptable. This might include impact assessments, design and access statements, and evidence of compliance with relevant legislation or policy guidance. Community consultation and support can also be advantageous in bolstering a case for consent.
Note that the submission of a retrospective application does not automatically halt enforcement action unless an appeal is lodged in relation to the enforcement notice. Therefore, a well-articulated application, backed up by robust planning arguments, is crucial.
Planning Conditions and Compliance
Planning permissions are often subject to specific conditions, which are designed to safeguard amenity, heritage, environment, or highways. Breaching these conditions can be as serious as building without permission and can attract a Breach of Condition Notice.
Understanding the exact terms of each condition is essential. If there is uncertainty about compliance, clarification from the LPA should be sought before any substantive work is undertaken. Varied or minor amendments to conditions may be possible through the appropriate planning procedure. Breach of planning control advice should always be taken before seeking to depart from the approved terms, however minor the change may seem.
Certain Exemptions and Time Limits
The law does recognise some situations in which breaches of planning control become immune from enforcement, primarily by virtue of time. This is known as the ‘four-year rule’ for operational development and change of use to a single dwellinghouse or the ‘ten-year rule’ for other changes of use or breaches of conditions. If no enforcement has occurred during the relevant period, the development may effectively become lawful.
Nonetheless, the precise calculation of immunity periods is legally complex. Some activities interrupt or reset the clock. LPAs can also serve a ‘Planning Enforcement Order’ in cases where they suspect deliberate concealment, extending their enforcement power. Breach of planning control advice can help clarify whether your development potentially benefits from immunity and, if so, how to properly secure a Certificate of Lawfulness.
Intention Versus Oversight: Does It Matter?
LPAs seldom differentiate between deliberate and inadvertent breaches when it comes to their enforcement responsibilities. However, in practice, the attitude of planning officers may be more sympathetic in cases of genuine oversight, particularly if swift remedial action is taken. Conversely, intent to deliberately circumvent the system or mislead officers can result in harsher measures, such as injunctions, fines, or, in extreme cases, enforced demolition.
It is therefore always advisable to engage with the LPA in an open and cooperative manner. Maintain clear records, respond promptly to communications, and avoid further works or changes until the matter is resolved.
Common Mistakes Leading to Breach of Planning Control
In advising clients, several recurring mistakes have been identified which can result in unintentional breaches. These include:
- Misunderstanding whether planning permission is genuinely needed, particularly for outbuildings, home extensions, or changes of use.
- Assuming permitted development rights apply when they have been