A property owner may assume that unauthorised development is no longer at risk of enforcement once the statutory time limit has passed. However, this is not always the case. Where a breach of planning control has been deliberately concealed, a local planning authority may be able to seek a Planning Enforcement Order and take action even after the usual enforcement period has expired.
This mechanism is particularly significant for property owners, developers and prospective buyers dealing with buildings or land that have an uncertain planning history. It means that the passage of time alone may not provide complete protection where deliberate concealment can be established.
Understanding how a Planning Enforcement Order works, the circumstances in which a court may grant one and the potential consequences is essential when assessing planning risks.
What Is a Planning Enforcement Order?
A Planning Enforcement Order is a court order that allows a local planning authority to take enforcement action against an apparent breach of planning control, even where the ordinary statutory time limits for enforcement have expired.
The power is provided under Sections 171BA, 171BB and 171BC of the Town and Country Planning Act 1990, as introduced by the Localism Act 2011.
It is intended to address cases where someone has deliberately concealed unauthorised development, preventing the planning authority from discovering the breach within the usual enforcement period.
For example, a property owner may carry out building works without planning permission and take deliberate steps to hide those works from the local authority. If the breach only comes to light after the normal enforcement deadline, the authority may consider applying for a Planning Enforcement Order.
The order does not automatically establish that the development is unlawful or require demolition. Instead, it gives the authority a further period in which to investigate and take appropriate enforcement action in relation to the identified breach.
When Can a Council Apply for a Planning Enforcement Order?
A local planning authority cannot obtain a Planning Enforcement Order simply because it has discovered an old planning breach. There must be evidence of deliberate concealment.
The distinction is important. Failing to notify the council about development is not necessarily the same as actively concealing it. The authority must demonstrate that the apparent breach, or at least some part of it, was deliberately concealed.
Examples of circumstances that may warrant investigation include:
- Carrying out unauthorised building works while taking positive steps to prevent their discovery.
- Deliberately disguising the nature or extent of development.
- Providing misleading information intended to conceal a breach of planning control.
- Taking steps to prevent the local planning authority from identifying unauthorised operations or changes of use.
These examples are not automatic grounds for an order. The court must examine the available evidence and decide whether the statutory test has been satisfied.
What Evidence Must the Council Provide?
The burden is on the local planning authority to establish that a Planning Enforcement Order should be made.
Under Section 171BC of the Town and Country Planning Act 1990, the magistrates’ court must be satisfied, on the balance of probabilities, that the apparent breach of planning control has been deliberately concealed, at least to some extent.
The court must also consider whether making the order would be just in all the circumstances.
Evidence may include:
- Photographs and records showing when the development took place.
- Site inspection reports and planning investigation records.
- Correspondence between the property owner and the local authority.
- Documents or statements that may indicate deliberate attempts to hide the development.
- Evidence showing when the authority first became aware of the apparent breach.
The court considers the evidence as a whole. The fact that a development was not disclosed to the council does not, on its own, establish deliberate concealment.
How Long Does the Council Have to Apply?
There is a specific deadline for applying for a Planning Enforcement Order.
Under Section 171BB of the Town and Country Planning Act 1990, the local planning authority must apply to the magistrates’ court within six months beginning with the date on which it became aware of sufficient evidence of the apparent breach to justify the application.
This is not necessarily the date when the authority first received a complaint or became aware that something had changed at the property. The relevant date is when it had sufficient evidence, in its opinion, to justify applying for the order.
The authority must provide a certificate, signed on its behalf, confirming the date on which the necessary evidence came to its knowledge. The legislation gives this certificate a particular evidential status.
For property owners, this deadline can be important when examining whether an application has been made within the statutory period.
What Happens After a Planning Enforcement Order Is Granted?
Once the magistrates’ court grants the order, the local planning authority receives a defined period in which it can take enforcement action.
This period is known as the enforcement year.
The enforcement year generally begins at the end of the 22-day period starting on the day the court gives its decision. There are provisions that affect this calculation where certain further proceedings are brought.
During the enforcement year, the authority may take enforcement action in relation to the apparent breach identified in the order. Depending on the circumstances, this could include issuing an enforcement notice or taking another appropriate step available under planning legislation.
The order does not mean that the council must take enforcement action. It restores the opportunity to act within the statutory framework, leaving the authority to decide what action is appropriate.
Importantly, the authority is not prevented from taking action after the enforcement year if the ordinary statutory enforcement time limits have not expired.
Can a Property Owner Challenge a Planning Enforcement Order?
A person whose interests may be materially affected by the proposed enforcement action should take the application seriously.
The local planning authority must serve a copy of its application on the owner and occupier of the land, as well as other people whose interests it considers may be materially affected.
Those served with the application have an opportunity to appear before the magistrates’ court and be heard. Other people with an interest in the land may also be heard where the court considers their interests would be materially affected.
A property owner or interested party may need to examine:
- Whether the alleged breach of planning control has been properly identified.
- Whether there is credible evidence of deliberate concealment.
- Whether the authority applied within the six-month statutory period.
- Whether the circumstances justify the court making the order.
- Whether the authority’s evidence accurately reflects the planning history of the property.
Legal advice can help establish which issues are relevant and how the available evidence should be presented.
How Does a Planning Enforcement Order Affect Property Owners and Buyers?
The possibility of a Planning Enforcement Order creates an important consideration during property transactions and development due diligence.
A building may have existed for several years without receiving enforcement attention. However, if there is evidence that unauthorised development was deliberately concealed, the local authority may still have a route to enforcement through this procedure.
For buyers, this makes it important to investigate more than the age of a building or the length of time a particular use has continued.
Before completing a purchase, consider reviewing:
- The property’s planning permission and approved plans.
- Building alterations and extensions carried out by previous owners.
- Planning enforcement correspondence and investigation records.
- Any evidence of retrospective planning applications.
- Whether the current use and physical condition of the property comply with planning requirements.
Where a property’s planning history is unclear, obtaining appropriate professional advice before proceeding can help identify potential liabilities and avoid unexpected complications.
Planning Enforcement Order vs Enforcement Notice: What Is the Difference?
Although the two terms are related, they serve different purposes under planning law.
| Planning Enforcement Order | Enforcement Notice |
| Obtained through an application to the magistrates’ court. | Issued by the local planning authority. |
| Used where deliberate concealment of a planning breach is established. | Used where the authority considers there has been a breach of planning control and enforcement action is expedient. |
| Allows enforcement action to be taken during the enforcement year. | Specifies the breach and the steps required to remedy it or stop the unauthorised activity. |
| Does not itself require the owner to carry out remedial works. | Can require specific steps to remedy the breach or cease an unauthorised use. |
The key distinction is that a Planning Enforcement Order restores the authority’s ability to pursue enforcement action in qualifying concealment cases. An Enforcement Notice is one of the enforcement measures the authority may subsequently issue.
Why Early Planning Advice Matters
Planning enforcement disputes can become complicated when the history of a development is unclear, evidence is incomplete or statutory deadlines are in question.
Property owners and developers should not assume that an old unauthorised development is automatically immune from enforcement. Equally, a local authority cannot obtain a Planning Enforcement Order merely by identifying a historic breach; the statutory requirements must be satisfied.
Understanding the planning history, examining the evidence and assessing the relevant legal provisions can help property owners make informed decisions before a dispute escalates.
Charrette Law can be contacted to discuss planning and property-related legal requirements and establish whether its services are suitable for the circumstances of a particular development or enforcement matter.
Frequently Asked Questions About Planning Enforcement Orders
Can a council take enforcement action after the normal time limit has expired?
Yes, in certain circumstances. Where a breach of planning control has been deliberately concealed, the local planning authority may apply for a Planning Enforcement Order. If the court grants the order, the authority can take enforcement action during the statutory enforcement year.
Does a Planning Enforcement Order mean that a property must be demolished?
No. The order does not automatically require demolition or removal of the development. It allows the local planning authority to take appropriate enforcement action in relation to the identified breach. The action ultimately taken will depend on the circumstances and applicable planning legislation.
How long does a Planning Enforcement Order last?
The enforcement year generally lasts 12 months and begins at the end of the 22-day period following the court’s decision, subject to the statutory provisions affecting the calculation. The authority may take enforcement action during this period.
Can a property owner attend the court hearing?
Yes. The owner and occupier of the land, along with other people served with the application because their interests may be materially affected, have the right to appear before the court and be heard.
Is simply failing to apply for planning permission considered deliberate concealment?
Not necessarily. A failure to disclose development or apply for permission does not automatically amount to deliberate concealment. The court must be satisfied, on the balance of probabilities, that the apparent breach or some part of it was deliberately concealed.
Can a Planning Enforcement Order be made before the normal enforcement deadline expires?
Yes. A local planning authority may apply before the ordinary enforcement time limit expires. This can be relevant where there is uncertainty about when the normal deadline will expire or insufficient time to complete the usual enforcement process.
Speak to Charrette Law About Planning Enforcement Matters
A Planning Enforcement Order can have significant implications for property owners, developers and anyone involved in a property transaction where unauthorised development may have been concealed.
Understanding the statutory requirements, evidence and potential enforcement consequences is essential when deciding how to respond.
Contact Charrette Law to discuss your planning and property-related requirements and explore the appropriate next steps.
