Government strengthens Planning Enforcement regulation: 25 April 2024

As of today, significant changes to the planning system will come into effect implementing key provisions of the Levelling-up and Regeneration Act 2023 (“the LURA”). Generally, the provisions of the LURA are being brought into effect in a piece-meal fashion over a period of time and it is essential for those within the industry to closely monitor these as they progress.

For the development and planning community, the most significant change coming into effect today marks the end of the long-established four-year period of protection from enforcement action for operational development and unauthorised changes of use to a single dwelling house. From today, this immunity period extends the enforcement period from four to ten years, significantly enhancing local planning authorities’ oversight of long-term projects. Developers will be relieved to hear that the regulations do include transitional provisions – specifically, the extension will not apply to operational developments substantially completed, or to any change of use to a single dwelling house, prior to 25 April 2024. For example:

1. Property converted to a single dwelling house on 24 April 2024 has the benefit of the four-year period (as the transitional provisions apply) and, on 24 April 2028, the property would be immune from enforcement action.
2. Property converted to a single dwelling house on 25 April 2024 would only be immune from enforcement  action after a ten-year period (as the transitional provisions do not apply) and therefore the property would not  be immune from enforcement action until 25 April 2034.

Generally, whilst the change to a uniform 10-year enforcement period is likely to assist local planning authorities (LPAs) in monitoring development compliance - we would anticipate some less favourable knock-on effects on the industry. In particular, the significant increase to ten years could negatively impact property values, as the risk of enforcement against planning breaches rises (no doubt, along side related rises in insurance premiums to cover potential breaches).

In light of the above, we would advise clients that may wish to benefit from the four-year period to collate all documentation to evidence substantial completion and/or a change of use to a single dwelling house prior to 25 April 2024. As time progresses, it is likely to become more difficult to meet the relevant evidential threshold to benefit from the four-year period (and to evidence substantial completion/change of use prior to 25 April 2024) so, where possible, applications for Certificates of Lawful Use or Development should be submitted promptly.

In addition to the above, a number of further LURA provisions are also coming into effect today, as summarised below:

Commencement and Completion:

• Development Commencement Notices (Section 111): Mandates developers to notify LPAs before starting development, intending to ensure better compliance and monitoring from the outset. Developers must specify a specific date by which development is to begin but, importantly, can vary the date by submitting a further Commencement Notice.
• Completion Notices (Section 112): Enables LPAs to enforce completion timelines, with the aim of helping to reduce the number of protracted construction projects and associated community disruptions.

Enforcement:

• Temporary Stop Notices (Section 116): Extends the duration from 28 to 56 days, giving LPAs more time to address and resolve breaches. LPAs are also now empowered to issue temporary stop notices for unauthorised works on listed buildings (rather than having to rely on the injunction procedure available through the Courts), enhancing their ability to protect heritage assets from irreversible damage. Transitional Provision: This will not affect temporary stop notices issued and not withdrawn before 25 April 2024, allowing ongoing enforcement actions to conclude under the old rules.

• Enforcement Warning Notices (Section 117): Introduces a new tool for LPAs to engage with breaches of planning control proactively, aiming to rectify issues before escalating to more severe penalties. An EWN can be issued where there is a ‘reasonable prospect’ that planning permission would have been granted if an application had been submitted for the unauthorised works. EWNs could be helpful at avoiding the issuing of enforcement notices, which generally remain on the title to a property (raising complications at each disposal/acquisition).

Rigorous Appeal and Penalty Framework:

• Appeals Against Enforcement Notices (Section 118): Tightens the grounds for appeals, streamlining the enforcement process. Specifically, there will now be limited circumstances in which an appeal can be brought on ground (a) (an application for retrospective planning permission). Specifically, if an application for retrospective planning permission has already been submitted to regularise the breach then this ground (a) will not be available. Transitional Provision: Appeals issued and not withdrawn before this date will not be restricted under the new rules.
• Undue Delays in Appeals against Enforcement Notices and Certificates (Section 119): Grants the Planning Inspectorate authority to dismiss appeals against enforcement notices and Certificates of Lawfulness on the grounds of undue delay occurring before or during the appeal process. In order to do so, the Inspectorate must first serve notice on the appellant confirming that an appeal will be dismissed unless specified steps are taken within a set time period (which the appellant subsequently fails to meet). Transitional Provision: This will not affect appeals lodged before 25 April 2024, preserving the rights under the previous regulations.
• Increased Penalties for Non-Compliance (Section 120): Raises the financial stakes for violations, with the intention of acting as a stronger deterrent against non-compliance. By way of example, penalty for non-compliance with a breach of condition notice is increased from £2,500 to an uncapped fine. Transitional Provision: Enhanced penalties apply only to offenses committed after 25 April 2024, providing a clear demarcation for compliance requirements.

Regulatory Flexibility:

• Power to Provide Relief from Enforcement of Planning Conditions (Section 121): This flexibility allows the Secretary of State to mitigate enforcement measures under specific circumstances, helping LPAs to manage minor or inadvertent breaches more effectively.

Overall, these legislative updates are designed to fortify the enforcement capabilities of LPAs, promoting adherence to established planning permissions and ensuring responsible development across England. As these changes take effect, stakeholders in the property and planning sectors—including developers and strategic land promoters—must stay abreast of the key changes to ensure compliance (or prompt regularisation) with the evolving regulatory environment.

If you require assistance with the latest (or upcoming) changes, then please contact our planning team, who would be happy to assist.

“The most significant change coming into effect today marks the end of the long-established four-year period of protection from enforcement action for operational development and unauthorised changes of use to a single dwelling house.”

Our Trainee Solicitor, Daniel Theo Solomos, made a significant contribution to this article.