What is Planning Enforcement.

Retaining an illegal structure by appealing an enforcement notice.

We are going to talk about the tricky topic of planning enforcement which is often a relatively emotional topic because it often feels that you're being told off or you've been told on in relation to something that you're doing in relation to planning.

In most circumstances planning enforcement is where you've received either a visit or a letter from a local planning authority which has identified that you've done something without planning permission that requires formal planning permission.

That communication is often brought forward by an enforcement officer that's a specific type of planning officer who works for a local planning authority who responds to requests for investigation and undertakes other types of monitoring to make sure that works undertaken within their area accorded with the requirements of planning policy.

Planning enforcement is easily done as an issue. A lot of times it's simply misunderstanding of what requires planning permission and what doesn't which is not an easy topic to cover with multiple strands of planning policy within any one local authority and mixed with national policy mixed with permitted development rights and whether you have them or not mixed with reviewing what someone else has done within an area and believing that you can do it yourself mixed with information found online. All of these elements form a melting pot that mean that you can often undertake without understanding that you require planning permission for it in the first instance.

In some instances the enforcement is slightly more strategic by a developer in seeking to do something with that planning provision and hoping that no one notices but in the vast majority of cases it is simply a misunderstanding on what people can do and what they can't do.

So to be clear, whilst you may receive a phone call or a visit or a letter from an enforcement officer, in the vast majority of cases if those enforcement officers have been given information to determine the fact that there may be an enforcement case in the vast majority of cases you won't find out who the person was or people were that essentially reported the information to the enforcement officer.

Occasionally if these things evolve into public inquiry enforcements those people that initially reported the case may wish to involve themselves in in objecting against any enforcement appeal brought forward but in the vast majority of cases you simply won't find out who reported you in the first instance.

You should never look past the fact that enforcement officers may have spotted the issue themselves. It is their duty to undertake such monitoring and with an increase in satellite imagery and street view imagery obviously the information is becoming more and more available to them to monitor from a desktop perspective.

So what does enforcement usually consist of? As we have said it usually consists of notification from an authority that there appears to have been a breach sometimes that breach can come forward in the form of a visit and a verbal instruction that there is a requirement for planning permission sometimes that comes in the form of a letter identifying an initial contravention and how that needs to be remedied.

In the vast majority of cases a council expects you to remedy it by submitting a planning application to rectify the problem and provide a solution. If the initial request to provide a solution for the issue by the local planning authority is ignored or for example a planning application that is put in to rectify the situation fails, then the second stage of enforcement is often a serving of an enforcement notice.

So in relation to the initial letter or the initial understanding of contravention what should you do? Well usually you're given advice on the type of planning application you're required to make in the breach of planning policy that you've undertaken so it gives you an understanding as to whether you can construct a planning case to justify your proposal or whether it's likely that any planning application would fail.

Ultimately unless you're prepared to remedy the breach immediately by the loss of any built construction that you've undertaken you are required to submit a retrospective planning application to regularize the problem in most cases. What you submit within that retrospective application will you submit anything that would have been required where you to have applied for planning permission in the first instance.

In the vast majority of cases it's the required application form and the required planning fee and further too that the submission of the appropriate plans as a minimum location plan block plan existing floor plans elevations and proposed i.e retrospectively proposed floor plans elevations if required and further to that if you would have been expected to provide any technical reporting to back up your position.

Examples are a design access statement or even things such as tree reports or flood risk assessments you are still required to do that even though the work's already been done. The application itself will then go through a standard application period usually monitored at arm's length by an enforcement officer but the application itself will be determined by planning officers within the council.

If it's a householder application you can expect that to be determined within six to eight weeks if it's a minor application but above a household application you can expect that to be determined within about eight weeks and if it's a major application you can expect that to be determined within around 13 weeks.

Otherwise a retrospective planning application works in the same way as any other planning application in that eventually will be determined and if the application succeeds planning permission will be granted and the enforcement case will be dropped. However in the same way a planning application could be refused and in relation to enforcement cases you have the ability to appeal that planning decision but it should be noted that an enforcement case can still be raised whilst the appeal is ongoing.

It may be that you've had a planning decision through that you intend to appeal within the statutory appeal time frame but you receive an official enforcement notice from the council within the same period. Some authorities will let you undertake a standard planning appeal for your case before issuing you with an enforcement notice but other authorities perhaps those that are keen to get enforcement notices in place as soon as possible, will issue you that as soon as possible after the decision has been raised.

This means that if you intend to appeal the decision you have two options really depending on the circumstances. You may have the position to be able to appeal first before any enforcement case is lodged by the local planning authority but otherwise you may have to undertake an enforcement appeal.

This is because the council invokes an enforcement notice at the same time as you've had your reason for refusal and as such you are required to deal with the enforcement notice as an appeal at the same time as dealing with the planning decisions refusal. So in that instance the appeal case and the enforcement notice appeal case are combined into one and you essentially undertake an enforcement appeal within the enforcement notification time frames.

If you just submitted a standard appeal to the planning inspector based upon a refusal and during that process the council issued an enforcement notice what usually happens is you have to also appeal the enforcement notice and when that goes to the planning inspector they will amalgamate the two cases.

But before we get to enforcement appeals it's important to understand what an enforcement notice is.

An enforcement notice is a statutory declaration raised by a local authority to determine that you have breached their requirements in terms of planning regulations. The enforcement notice itself will detail the allegations raised in relation to the breach and their reasoning for raising the allegations in the first instance. The enforcement notice will tell you what you're required to do and that is essentially comply with the requirements of the notice and it will tell you a time for compliance. So what that means is that the enforcement notice will tell you if you are in breach they will expect you to remedy the breach by undertaking a certain amount of tasks.

For example the knocking down of any extensions that don't have planning permission. Knocking down of any fences or structures that don't have planning permission. It will give you a time for compliance which depending on the circumstances is often three months or six months depending on the scope of the works and it will also provide an effective date.

It will provide a date within the future after the enforcement notice is served when the matter is confirmed and sealed and has to be met and complied with. The effective date of the enforcement notice is often very quick off the back of the delivery of the enforcement notice itself usually sits at around 30 days and it is essential that if you intend to appeal the enforcement decision you have to raise an appeal with the planning inspector before the effective date.

If you don't the effective date kicks in and you don't have a right to appeal and you have to comply by law with the requirements of the enforcement notice. If you don't it is a prosecutable offence.

So how do you appeal an enforcement notice? Well there are seven different grounds of appeal which provide different avenues of discussion depending on the circumstances ground ‘a’ provides that planning permission should be granted for what is alleged in the notice or that the conditional limitation referred to in the enforcement notice should be removed.

A ground ‘a’ appeal is basically a position whereby you feel that if you were to submit a planning application for the breach it would gain planning permission based upon a reasonable determination of the local plan. What that means is that if you've already submitted an appeal against the retrospective refusal of permission and you subsequently get an enforcement notice request from a local authority and therefore have to also serve an enforcement notice appeal, you would automatically work on the basis of a ground ‘a’ appeal because you've asserted by way of the submission of the original appeal that you feel that it should have gained planning permission.

If you didn't submit an original planning application to try and rectify the issue and you've been served with an enforcement notice and you're subsequently appealing the enforcement notice this is where you find your opportunity to confirm to the planning inspector that you feel that had you submitted for planning permission you would have achieved that planning permission.

A really important thing to note with a ground ‘a’ is that if you've already submitted the planning appeal based upon a refusal planning commission and you're subsequently appealing an enforcement notice there is no further planning fee to pay. However if you didn't submit an original planning appeal because you didn't submit an original planning application for your enforcement breach and you're simply appealing the enforcement breach you've now been served you have to pay a planning fee to ask the planning inspector to determine your planning case under grounds ’a’ and as a punishment you have to pay double the fee.

So what that means for example that if you would have paid £206 for a householder planning application to retrospectively determine your case had you submitted it to the local authority in the first instance if you're now expecting the planning inspector to make that under a determination instead under a ground appeal because you didn't deal with the council in the first instance. You now have to pay £412 so a ground appeal within an enforcement case is your opportunity to present a planning case.

Essentially a ground ‘b’ appeal works on the basis that the breach of control alleged in the enforcement notice has not occurred as a matter of fact and ground ‘c’ that there has not been a breach of planning control. Now these are what we call legal grounds so these are grounds that you can determine in law that those matters have either not occurred or have not occurred as a matter of fact. So if you're seeking to present an appeal to the planning inspector on the basis of grounds b or c it is extremely important that you have evidence to back up the position that the breaches have not occurred because they will be examined with regard to their legal veracity.

The ground ‘b’ appeal is that at the time the enforcement notice was issued. It was too late to take enforcement action against the matter stated in the notice so a ground appeal is often on the basis of what we call a lawful implementation of time which is where by things such as the four-year rule or the 10-year rule that you may have heard of takes hold. This is in certain circumstances if something has occurred for a period of time over four years it is no longer subject to enforcement action.

In other circumstances if it's occurred over 10 years without any enforcement case across that time it is no longer subject to enforcement action. The specifics associated with the ground ‘d’ case that is the lawfulness of a situation based upon the expiry of time, is very site-specific and I would always recommend you seek professional advice before presenting that sort of case to understand how that case needs to be materially evidenced.

A ground ‘e’ enforcement case is that the notice was not properly served on everyone with an interest in the land that is that the enforcement notice itself has been submitted has not been submitted to everyone that has an ownership or a part ownership of the land and, as such, is moot in its ability to be enforced.

It should be noticed that this is simply a ‘stop gap’. There will be a requirement to identify to the local authority the interested parties within the land and often it's the case that another enforcement notice will be served.

A ground ‘f’ appeal is determined by the wording in the technical planning act which says that the steps required by the notice to be taken or the activities required by the notice to see succeed what is necessary to remedy any breach of planning control which may have been constituted by those matters or as the case may be to remedy any injury to immunity which has been caused by any such breach.

So a ground ‘f’ appeal is basically a determination that you consider the actions required to remedy the breach raised by the local public authority are excessive beyond what is needed to be undertaken so you may be in a position where you can say that we can undertake elements a b and c and that will satisfactory address the requirements of the breach and as such requirements d e and f are uh unnecessary or overly onerous in the circumstances.

A ground ‘g’ appeal is at the time given to comply with the notice is too short that is there are specific circumstances associated with the case that dictates the compliance time of say 30 days or 60 days is far too short in the circumstances to allow the remedy of the breach. It should be noted that in most circumstances you may combine elements of an appeal so it's not always the case that you simply raise an enforcement appeal on the basis of one ground.

You may choose a number of grounds in order to underpin your case but at the same time if you feel that only one ground is necessary to support your appeal that appeal is not stronger or weaker on the basis of only taking the route of one of the grounds.

What is absolutely certain is if you're in a position where you feel that planning permission should be granted for the breach then you have to submit a ground ‘a’ appeal. If you don't submit a ground ‘a’ appeal but you still expect that the inspector to determine the case on the basis that it should get planning permission that won't happen, they simply won't determine it on that basis.

So even if the inspector minded to think that the planning permission should be granted for the breach and therefore the appeal is successful if you haven't appealed on the ground ‘a’ and paid the planning fee if it's required it won't be determined on that basis.

At the end of the appeal process a number of situations could have occurred. Firstly the appeal could have been upheld and planning permission granted for the original breach however another thing could have happened which is the dismissal of the appeal and a requirement set by the inspector to comply with the enforcement notice a time for compliance and the remedies for the breach. If it's an appeal that includes the assessment of ground ‘f’ an inspector may give an assertion as to what requirements are necessary in order to remedy the breach which may be the full list the authority raised or just the partial amount of that list.

Finally the inspector may change the compliance period so if they feel that a greater period of compliance could be provided in order to address the circumstances as appeal under ground ‘g’ they may give a longer period of time in order to provide that compliance what is certain is if the appeal upholds the fact that enforcement has occurred then you are duty-bound to accord with the instructions of the appeal decision with regard that enforcement notice and if you don't as I said before it is a prosecutable offence.

Enforcements can be extremely frustrating and extremely stressful so here are my top tips in managing such a situation.

Firstly communicate with the council as soon as possible don't ignore any requests for information from a local planning authority whether that be a simple initial inquiry whether that be confirmation they require planning permission or whether that simply be an attempt by an enforcement officer to discuss the situation with you it is highly important that you engage with those officers as early as possible. To remedy the issue the situation as it is highly unlikely that it is going to go away.

Tip two - seek to retrospectively address the issue as soon as possible so if you are able to remedy the breach in the knowledge that you're unlikely to get planning permission in a very simple way then to communicate with the enforcement officer to determine how that will be undertaken.

Alternatively if you are required to get planning permissions submit that planning application as soon as possible. Provide all the information that's required to actively determine the case because ultimately what you're doing at that point is seeking a planning permission as the same in any other circumstance.

Thirdly, avoid what we call kicking the can appeals which is the idea that you can hold off an enforcement breach for as long as possible. By appealing an enforcement notice and earning a couple of months out of the circumstances before the breach kicks in. What tends to happen in that circumstance is that if it's felt that the enforcement appeal raised is not particularly substantial or has been raised on false grounds or weak grounds you can be liable for the council's costs associated with taking the case to appeal.

So it's really important that if you are in a position where you can objectively determine that you haven't got a very good appeal case you should really seek to address the issue as soon as possible by remedying the breach as soon as possible rather than seeking to eke out the process for a longer period of time through the appeal because this can come back to bite you in terms of the costs.

And finally, the greatest tip I can give you is to not fall foul reinforcement in the first instance by taking as much professional advice as you can. In any circumstance whereby you have a sniff of an understanding that planning permission may be required in those circumstances take anecdotal advice from other people that have done work to determine whether you require planning permission or not.

If you're not sure whether information online is enough or sufficient enough to give you the confidence that you don't require planning permission then always seek professional advice in order to determine whether you do or not.