The London Evening Standard recently reported[1] that, under the Proceeds of Crime Act 2002 (POCA), a restaurant owner in Lewisham has been ordered to pay £2.5 million pounds and had their passport seized. Their mistake? Failing to remove an unauthorised kitchen extractor fan as required by a planning enforcement notice issued under s.172 of the Town and Country Planning Act 1990.
As this case illustrates, if not dealt with correctly, planning enforcement can have serious financial consequences. Let’s explore what planning enforcement is, and what you should do if you receive a planning enforcement notice.
What is an enforcement notice?
In England and Wales, the development of land (building and engineering works, and a material change in the use of land) will usually require planning permission. Development carried out without the requisite planning permission or without complying with conditions attached to a planning permission, is a ‘breach of planning’, and may result in the issue of an enforcement notice.
An enforcement notice is a legal notice issued by your local council where there has been a breach of planning. It should indicate the breach, set out the steps required to correct it, and specify a deadline for those steps to be completed. Depending on the breach, those steps can be seriously disruptive and expensive, including removing an unauthorised building entirely.
The notice will also specify a date on which it ‘takes effect’ – usually 28 days after it was issued. Once the notice takes effect, a failure to comply with it is a criminal offence, punishable by a fine. As the restaurant owners in Lewisham have discovered to their cost, it can even lead to the confiscation of eyewatering sums under the POCA regime.
What should you do if you receive an enforcement notice?
Most importantly, do not ignore the notice.
Sometimes, the best response is just to comply. However, in most cases it makes sense to appeal the notice. Any appeal must be brought before the notice ‘takes effect’ (i.e. often within 28 days). If you miss the appeal deadline, you must then comply with the notice.
There are only a limited number of statutory grounds for an appeal:
A – Planning permission should be granted.
B – The alleged breach did not occur.
C – The alleged breach is not a breach of planning control.
D – Time limits for enforcement action have expired.
E – The notice was served improperly.
F – The steps required by the notice are excessive.
G – The time for compliance is too short.
Of these, grounds A, D, F & G are the most common.
Ground A is not available if planning permission for the unauthorised development has already been refused (that refusal would need to be appealed separately). The time limits referred to in Ground D changed as of 25 April 2024. All breaches which took place after that date only become immune from enforcement after 10 years. For unauthorised building works and unauthorised changes of use of a building to a single residence which took place before that date, the immunity period is four years[2]. Grounds F and G are self-explanatory. It is also possible to appeal an enforcement notice where the council has made certain mistakes in the drafting or service of the notice (Ground E).
Enforcement appeal outcomes comprise:
- The appeal is successful – the enforcement notice will be quashed in its entirety.
- The notice is varied. This can ‘relax’ some of the requirements – e.g. by extending the time for compliance or amending the steps required by the notice.
- The appeal is wholly dismissed. If this is the case, you must comply with all of the requirements of the notice.
Once the appeal is made, it will commonly take anything from eight to 12 months to make a final decision[3]. While the appeal is ongoing, the enforcement notice is suspended and does not need to be complied with. Hence, an appeal buys you time. That time can be used to try to sort out the issue, whether by appeal, by negotiation and a further planning application, or a combination of both.
In summary, never ignore a planning enforcement notice – the consequences can be dire. At Tees, our specialists regularly advise on the best way of dealing with planning enforcement and have a track record of successfully appealing enforcement notices. If you have received an enforcement notice, get in touch for an initial consultation.
[1] London restaurant faces £2.5m ‘proceeds of crime’ fine over kitchen fan installed without council permission | The Standard
[2] The Planning Act 2008 (Commencement No. 8) and Levelling-up and Regeneration Act 2023 (Commencement No. 4 and Transitional Provisions) Regulations 2024, Regulation 3.
