Controlling development is a key part of an effective planning system. It regulates the development and use of land so that the planning system achieves its objective of delivering sustainable development.
A breach of planning control is subject to enforcement action and is governed by the Town and Country Planning Act 1990 (as amended) (the 1990 Act) and in particular, by the definition of ‘development’ set out in section 55 – one of the key provisions of the 1990 Act. The definition can be interpreted to mean that there are two forms (or two limbs) of development as follows:
- operational development – comprising the four elements of building, engineering, mining or other operations including demolition; or
- the making of any material change in the use of any buildings or other land.
Case law has provided some interpretation of what is meant by the following terms:
- “operations” comprises activities which result in some physical alteration to the land, which has some degree of permanence to the land itself;
- “use” comprises activities which are done in, alongside or on the land but do not interfere with the physical characteristics of the land.
This interpretation is somewhat simplistic but provides a basic yardstick.
Therefore, operational development and the material change of use of any buildings or other land are subject to planning control and, generally, will require some form of planning permission.
There are two aspects to a breach of planning control and these are:
1. The carrying out of development without the required planning permission which usually means that unauthorised operations or a material change of use which constitute ‘development’ within the meaning of section 55 of the 1990 Act, have occurred, and that planning permission is required for that development, but which has not been obtained.
2. Failing to comply with any planning condition or limitation subject to which planning permission has been granted. This includes any limitations or condition applied to individual permitted development rights in the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) or in Wales the Town and Country Planning (General Permitted Development) Order 1995 (as amended).
What are planning conditions?
When planning permission is granted, conditions are generally attached that must be complied with. If any of the conditions or limitations on a planning permission are not complied with, this constitutes a breach of planning control.
Responsibility for enforcing breaches of planning control lies with the planning authority who have discretion when choosing whether to take enforcement action and what type of action to take. In considering any enforcement action, the planning authority should act in a proportionate way having regard to the scale of the breach and to national planning policy, the development plans and any other material considerations. All planning authorities are expected to publish a local enforcement plan to manage enforcement proactively and appropriately for their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where it is appropriate to do so. This plan is a useful mechanism for stressing that effective enforcement is important for maintaining public confidence in the planning system.
Formal planning enforcement is the taking of enforcement action when it ‘appears’ that there may have been a breach of planning control. On many occasions this may occur after an attempt to resolve the problem by negotiation has not resulted in a satisfactory outcome.
The key objectives of the planning system for planning enforcement are:
- to bring unauthorised development under control where necessary;
- to remedy any undesirable effects of unauthorised development including, where necessary, the removal or cessation of unacceptable development; and
- to take legal action, where necessary, against those who ignore or flout planning legislation.
There is an expectation that each planning authority in England and Wales should develop an enforcement strategy which sets out its own enforcement policy and procedure. It is important that planning authorities meet the above objectives to ensure the credibility and integrity of the planning system are not undermined.
The planning authority has various statutory powers which can be used to ascertain whether a breach has occurred, including requesting information from the occupier, serving a planning contravention notice, and statutory powers to enter land for enforcement purposes.
In order to regularise a breach of planning control, the planning authority may request that a retrospective planning application be submitted for a breach of planning control. The statutory enforcement powers include the ability to serve a: planning enforcement notice, breach of condition notice, stop notice and temporary stop notice. In England, there is also a planning enforcement order in respect of concealed development. All of these have different provisions, conditions, limitations, and all have their own penalties and fines for non-compliance; for example, a planning enforcement notice has a right of appeal, but a breach of condition notice has no right of appeal, it merely requires compliance with the relevant planning condition.
The 1990 Act also provides enforcement time limits for considering whether immunity from enforcement can be established. The 1990 Act provides planning authorities with two different time limitation periods for enforcement action. This means a planning authority has only a limited time within which it can take enforcement action. These time limitation periods are to ensure a measure of fairness in the system as people’s recollection fade or documents go astray and so on. Also, there is a need for certainty – for example, it may be difficult to sell a building or land which has a dubious planning history. Accordingly, there is a need for a cut-off point after which a planning authority is prevented from taking any further enforcement action.
Breach of planning – the 4 and 10 year rules
- Operational development – in the case of building, engineering, mining or other operations, enforcement action must be commenced within four years of substantial completion of the development.
- Material change of use of a building – in the case of the change of use of a building to a use as a single dwelling house, enforcement action must be taken within four years beginning with the date of the breach of planning control.
- Any other breach of planning control, enforcement action must be taken within 10 years beginning with the date of the breach. This 10-year period applies to material changes of use and a breach of condition imposed on a planning permission.
It may be possible to regularise a breach of planning control by:
- a successful appeal against a planning enforcement notice
- compliance with a breach of condition notice
- a retrospective planning permission
- a certificate of lawful existing use.
This article merely provides an overview of the planning enforcement provisions and it is always recommended that further advice is taken.
Frequently asked questions
Where can I get more information?
The article provides an overview of a complicated area of planning law. CLA members have free access to advice including Guidance Notes on matters related to planning law and policy.
Do planning conditions expire?
It depends on the wording of the planning condition in question. Generally all planning permissions are granted subject to planning conditions. By law, a planning permission may expire after a certain period of time that is usually set out in the planning condition. Unless a planning permission says otherwise, the applicant has three years from the date of it being granted to begin development. If work has not commenced then the planning permission expires and the applicant will need to reapply for a new planning permission.
If the development proposal is related to permitted development rights, then usually the grant of prior approval by the planning authority will be conditional and/or subject to the relevant definitional criteria. Often the specific permitted development right definitional criteria require that development is completed by a certain date. If the condition and/or definitional criteria is not complied by the expiration date, the prior approval expires and a new prior notification application would be required.
Breach of planning control vs breach of planning condition – what’s the difference?
A breach of planning control relates to operational development and/or a material change of use that has taken place without first obtaining planning permission. This is governed by a definition of what is meant by ‘development’ set out in the Town and Country Planning Act 1990.
A breach of condition – when planning permission is granted, conditions are generally attached that must be complied with. If any of the conditions or limitations on a planning permission are not complied with, this constitutes a breach of planning control under the Town and Country Planning Act 1990.
Do planning breaches result in fines and/or penalties?
Yes, breaches of planning control including breaches of planning conditions, if not regularised, can result in fines and penalties. These can amount to a criminal offence and fines that can be unlimited.