There are several different types of planning enforcement actions, the most common of those being enforcement notices, as well as stop notices. What should you do if you receive one and why might you receive one in the first place? At Kingsley Smith Solicitors LLP our proactive planning lawyers have dealt with most types of objections to these kinds of enforcement measures. We make the process of receiving and dealing with any planning enforcement measure as stress free as possible. We have the experience and practical knowledge to deal with them effectively as well as getting the best results for our clients. Read on for more information on how to deal with some of the key planning enforcement measures that local authorities might use to restrain an alleged breach of planning control.
A planning enforcement measure is a notice or order issued by a local council (or a court) if they feel planning control in their jurisdiction has been breached. ‘Planning control’ is defined in section 171A of the Town and Country Planning Act 1990, (see Planning Practice Guidance.)
One such measure is a Planning Enforcement Order, introduced in April 2012 to stop breaches of planning control after the statutory time limits for enforcement have expired. This measure was created to address concerns about deliberate concealment or planning breaches.
The Local Planning Authority must have sufficient evidence of a breach to even justify applying to the magistrate's court for a planning enforcement order. An order will only be granted if the court is satisfied that a breach of control has been deliberately concealed by the taking of positive steps. Refraining from informing the authorities does not count.
The application for the order must be served on the owner and the occupier of the land and on anyone else who would be materially affected by enforcement action. Those served with the application have the right to be heard by the court before any order is granted.
There are several different types of planning enforcement measures. Enforcement and Stop notices tend to be the most common and well known, although there are many different ones, which we outline below.
Definition of an enforcement notice
This is one of the first steps taken by a council when there is a development or part of a development they feel is in breach of planning legislation. These notices will either ask for an action to be taken or ceased. Note: An enforcement notice can require the demolition of a building erected without planning permission. A stop notice cannot do so. (See more about stop notices below).
You must comply unless you can appeal against it in time. If not, you will most likely be prosecuted. The local authority also has the right to come in and make the alterations themselves.
Definition of a stop notice
A stop notice can prohibit any or all of the activities which comprise the alleged breach(es) of planning control specified in the related enforcement notice, ahead of the deadline for compliance in that enforcement notice. This is a follow-up to an enforcement notice and can result in a substantial fine. A stop notice cannot be appealed, but it can be challenged in the courts by a judicial review claim.
If either a stop notice or an enforcement notice is quashed or amended, you might be entitled to compensation. These sorts of planning orders need immediate and specialist help and this is where Kingsley Smith Solicitors will be able to help with their expertise and knowledge.
Temporary stop notice: This is a temporary order, which only lasts 28 days and can be issued immediately and without an enforcement notice having been issued.
Alternatives to enforcement notices
If you’ve received a planning enforcement measure of some kind, it may not fall under either of these titles discussed above. Depending which council’s jurisdiction you come under, or what specific breach of planning controls you may have committed, you could receive one of the following:
- 'Breach of condition notice': Used to fix a breach of condition as an alternative or addition to an enforcement notice.
- 'Planning contravention notice': Served if the council suspects a planning breach. It doesn't have to be served before the enforcement notice, but it can be. It's an offence to respond with false information and it must be responded to within 21 days.
- 'Section 330 Town and Country Planning Act 1990' request: Similar to a PCN, used to obtain information, response is required within 21 days.
- 'Section 16 Local Government (Miscellaneous Provisions) Acts 1976': Similar to a PCN / s330 used to obtain information. A response is required within 14 days.
Here at Kingsley Smith Solicitors we can provide planning enforcement guidance, whatever the type of planning enforcement document you’ve received. We have the expertise to help the smallest householder as well as those on more of an industrial scale. We’re accustomed to liaising with local planning authorities and will work towards the very best result for you. Cases of concealment often turn on the available evidence, so it's vital to seek advice as soon as possible.
If your case concerns a listed building, the appeals process may often be more sensitive than a standard appeal. At Kingsley Smith Solicitors we have the background knowledge and specific experience to take on cases such as these.
In addition, we are an authority on tree preservation orders and will be able to advise on the best course of action. Whenever a tree preservation order is issued, an objection or representation can be made within 28 days of the order and must be made to the local authority. They must allow these objections to be made, which can be made on any grounds. Browse our TPO page for more detailed information.
If you feel you need more information before making a decision on an appeal, why not check out this government guide. Be aware though, it certainly cannot cover all the nuances of the elements, which lead to a successful appeal.
If you've received an enforcement notice, you may not know where to start. Don't panic, the important thing is to take it in stages. We've broken down an enforcement notice into carefully explained sections, to help you deal with your enforcement notice effectively.
Section 1 A: The top of the notice refers to the Town and Country Act - this is simply a legal necessity. Your case number will most likely be found here too, starting with "ENF/" or "E/". The notice will state that it's "ISSUED by the 'Council', so it's clear that everything that refers to the ‘Council’, means your local council in the UK and no other council.
Section 1 B: THIS NOTICE is issued by the Council because it appears to them that there has been a breach of planning control, under Section 171A(1)(a) of the above Act, at the land described below.
This section explains why you have received the notice; that you have done something, which did not have proper planning permission. Section 171A(1)(a) refers to this and can be found online. This also means they've taken into account the Local Development Framework, laying out what's important to the council for the area.
Section 2: This part refers to the specific section of land, which the notice applies to. [The land to which the notice relates] There should be a map, which refers to this, the specified area edged in a thick black line.
Section 3 A: This part explains why the notice has been issued. This can encompass many different aspects and might not necessarily refer to physical changes, such as extensions. Common causes of a breach could be the following: Unplanned extensions, conservatories and garden sheds. It’s important to note, that some will and won't need planning permission, depending on the direction the property faces and its size for example. However, it could also be considered a breach if you start running a business from your home, or start storing large equipment in your home, for your business.
Section 3 B: This lets you know when the council consider the breach occurred. There are time limits regarding a breach and when it is still possible to issue an enforcement notice. For some breaches, a term of four years is the maximum time during which a notice can be issued after the breach and in some cases, ten years. Be aware that if you have attempted to hide an 'illegal' structure behind something else, for four years, in order to avoid a notice, you may not be exempt.
Section 4: Detailed reasons behind why the notice has been issued and what policies it breaches.
Section 5: This lists what you need to do next (make sure this is clear and if not ask a lawyer or the council).
Section 6: The time you must comply by. [X weeks after this notice takes effect.]
Section 7: [When this notice takes effect]: This means, the date the notice becomes effective on. This must be at least 28 days from the date the notice was issued.
Annex: This section includes basic information on how to appeal the notice. Read the information sheet that was issued with the notice, as this will include useful tips.
How could the notice impact me?
If you fail to comply with the any of the planning enforcement documents mentioned above and particularly an enforcement or stop notice, you will be at risk of being fined. You may also be prosecuted. You might receive an injunction to prevent you from taking further action. You could also face direct action, meaning the council may take an active approach by, for example removing the incriminating extension. In the most serious cases, you could face imprisonment, but with the legal help of a planning lawyer, you’re not likely to get to this stage.
The most important thing to remember is not to panic and to deal with the notice as soon as you can, to avoid an escalation of the process, as described above.
In terms of potential fines, these are estimates of what you may be liable to pay if you do not observe the requirements of the planning enforcement notice you’ve received.
- If you fail to comply with an enforcement notice you can be tried in the Magistrates' or the Crown Court. The maximum penalty in the Magistrates' Court is a fine not exceeding £20,000 but there is no limit on the fine that the Crown Court may impose.
- If you do not comply with a stop notice, which usually requires activities to cease within a minimum period of three days, you can receive a maximum penalty of £20,000.
- Summary prosecution can be brought in the Magistrates' Court for the offence of contravening a breach of condition notice. The maximum penalty on conviction is a fine not exceeding "level 3" on the standard scale (currently £1,000).
- If you ignore a Section 16 Local Government (Miscellaneous Provisions) Acts 1976 you could receive a maximum penalty £5,000.
There may be ways in which an enforcement notice (or indeed any of the aforementioned planning enforcement documents) is invalid; make sure you investigate the options as described below, as it will give you more time.
The planning enforcement document may be void if the council does not know all the names of the owners and occupiers or if the order is too vague. It could also be invalid if the enforcement notice is inaccurate.
It’s a sensible idea to contact a solicitor and at Kingsley Smith Solicitors, we would never encourage a client to take on an appeal against an order, if we didn’t think there was a strong case to do so.
We are able to advise you on the ins and outs of your case and the potential pitfalls or positive aspects of the appeal ahead. We most often also find a way to improve a client’s case, if initially it seems as if there may be nothing to pursue. We will work with you to build as comprehensive and well-structured a case as is possible. We understand exactly what planning officers and local planning authorities want to see and will present a comprehensive and well-presented case, which even the busiest of planning officers can process easily.
Remember there are also time limits that the council must adhere to, when taking enforcement action. You should be aware of these and be ready to argue your case, if you feel an order has been issued incorrectly. In some cases for example, the council may claim that the current planning permission has lapsed. At Kingsley Smith Solicitors we have the specialist knowledge to argue against decisions such as this.
Subject to cases where there has been deliberate concealment, development is immune from enforcement if no action is taken:
- Within 4 years of substantial completion for a breach of planning control consisting of operational development.
- Within 4 years for an unauthorised change of use to a single dwelling house.
- Within 10 years for any other breach of planning control (changes of use)
In this case, you have a couple of options. If you do not think you can or want to comply with the notice then you should make an appeal to the Planning Inspectorate. If you think you can comply and are willing to do so, let the council know about the inaccuracies.
Remember: You have until the effective date to make an appeal so there is no cause for alarm
Should I make an appeal?
Only consider submitting an appeal as a last resort. It's always worth trying to negotiate with your local council before you go down the road of making an appeal.
If you do decide that an appeal is the best option, you'll need to submit it to the Planning Inspectorate, (an executive agency of the Department for Communities and Local Government.) You must do this before the date the enforcement notice specifies as a time limit. Make sure you go over your grounds for appeal with a fine toothcomb. If there are any gaps, they will be found and you may have to resubmit your appeal. If you need any help or advice, please don't hesitate to get in touch with us.
The appeal itself is free to submit. However, if the appeal is made on the basis that planning permission should be granted, you'll need to pay a fee for this, normally double that of a standard planning application. Half the fee is payable to the Local Planning Authority and half to Communities and Local Government.
You can make an appeal against an enforcement notice online. The Planning Casework Service is a system available via the Planning Portal.
You can send your appeal to The Planning Inspectorate by post, by fax, or deliver it by hand to the address below. You should keep the fax transmission report and recorded delivery numbers, or if you deliver your appeal by hand ask for a dated receipt.
- The Planning Inspectorate
- PO Box 326
- BS99 7XF
- 0117 372 8075
You can comment on or withdraw your appeal at any time during the proceedings.
It’s important that you don’t submit any late evidence, as this is likely to be ignored by the Planning Inspectorate; likewise if the LPA submit new evidence, this is not likely to be considered either. In extreme cases the Inspector may choose to consider material that may help the case and which could not have been reasonably submitted by the relevant date. The decision will normally be posted in the Planning Portal search facility, so you can check back using your case reference number.
We can help to make the process as straightforward as possible with our planning expertise and our supportive, experienced lawyers. At Kingsley Smith Solicitors we can help whatever your location within England. Don’t hesitate to get in touch, if you need to discuss your options or would like our help with an appeal against a planning notice.
Please call us on 01634 811 118, complete our online enquiry form, or email our planning law expert Nicholas Kingsley-Smith.
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