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A local planning authority (“LPA”) can take enforcement action in respect of planning breaches where it considers it to be expedient to do so. However, breaches of planning control can become lawful and immune from enforcement action after a period of time.

Section 171B of the Town and Country Planning Act 1990 (“TCPA”) currently provides that LPAs will not be able to take enforcement action in respect breaches of planning control following a period of either four or 10 years.

The four-year period applies in respect of operational development and the change of use of a building to a single dwellinghouse. The 10-year period applies in respect of all other breaches of planning control, including breaches of planning condition.

Certificates of Lawful Existing Use or Development (“CLEUD”)

An application pursuant to Section 191 TCPA can be made to establish whether a breach of planning control has become lawful due to passage of time.

Sufficient evidence must be submitted to the LPA to satisfy it, on the balance of probabilities, that the use or development is lawful. There is further guidance in the Planning Practice Guidance as to what the application should contain and how the LPA should assess evidence. The test is a legal one, rather than a question of planning merit, and it is recommended that legal advice is sought prior to making an application. Where a CLEUD is issued, Section 191 provides that the lawfulness of the relevant matter will be conclusively presumed. If the CLEUD is refused, an appeal can be made.

Enforcement notices

Where an enforcement notice is served and the time limit for taking such action has passed then a Ground ‘D’ appeal should be considered.

This ground is 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”. If this is successful, the Inspector could issue a CLEUD in respect of the alleged breach to which the ground applied. There are other grounds on which an appeal can be submitted and important the time frame within which to submit the appeal is strict, any appeal must be submitted before the date the Enforcement Notice takes effect, that deadline cannot be extended.

Listed buildings

There are no time limits for bringing enforcement action in respect of unauthorised works or breaches of listed building conditions in respect of listed buildings.

Levelling Up and Regeneration Act 2023 (“LURA”)

Section 115 of the LURA proposes to change the period for all breaches of planning control to 10 years. This change will only apply to England, not Wales. Importantly the changes would not come into effect until the Secretary of State made regulations to bring the changes into form.

On 2 April 2024, “The Planning Act 2008 (Commencement No. 8) and Levelling-Up and Regeneration Act 2023 (Commencement No. 4 and Transitional Provisions) Regulations 2024 (2024 Regulations) were made. The Regulations will bring Section 115 of the LURA in to force on 25 April 2024.

Accordingly, from 25 April 2024 and subject to the transitional provisions - detailed below - all breaches of planning control, whether operational development, changes of use to dwellinghouse or breaches of planning conditions will be subject to the 10 year period in England.

Regulation 5 includes transitional provisions which provide that, where operations under Section 171B(1) TPCA were substantially complete or a change of use to a single dwellinghouse occurred before the 25 April 2024, the four year period will continue to apply.

The provisions in respect of changes of use of a building to a single dwellinghouse must have only occurred by 25 April 2024, accordingly if the change of use to a single dwellinghouse begins on 24 April 2024 and continues until 24 April 2028 that would be lawful, however a change of use that begins on 25 April 2024 would not become lawful until 25 April 2034.

Implications

While there are transitional provisions, it may be difficult without sufficient evidence to demonstrate on the balance of probabilities that operational development was completed, or the change of use to a dwellinghouse occurred before 25 April 2024, particularly where the period for immunity expires or begins, in the case of a change of use to a single dwellinghouse, close to that date.

Advice must, therefore, be sought in respect of any breaches of planning control considered to be lawful under the four-year period, including an assessment of available evidence. Where a CLEUD can be made, it is advised that these are made sooner rather than later.

LPAs will need to give careful consideration to enforcement in respect of development that may continue to be subject to the four year rule.

LPAs are able to issue Planning Contravention Notices that allow the LPA to obtain information in respect of alleged breaches of planning control and these may be utilised more often to understand whether development may be immune under the four year rule, or which might, in the case of single dwellinghouses, continue to be subject to the four year rule and become immune by 24 April 2028.

 

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