8 September 2015

Planning Enforcement and Retrospective Applications: the new risks of getting it wrong

Since the case of Mr Fidler, who built an entire castle in the Surrey Green Belt without planning permission, hit the headlines in 2010, the Government have made a number of changes to the way that enforcement of breaches of planning permission can be dealt with.

Local Authorities have always had limited time within which to take enforcement action, being four years for building works or change of use to a single dwelling, and ten years for other changes of use or breaches of conditions attached to a planning permission. After this time has expired, it used to be clear cut that no enforcement action could be taken, and the development became lawful.

The changes introduced in the Localism Act which came into force in April 2012 meant that this time limit for enforcement could be extended by the Court where there has been ‘concealment’ of a breach. This means if the unauthorised development has been hidden from the Local Authority by some sort of deceit so as to prevent enforcement action being taken within the usual time limits, action may still be able to be taken.

Many landowners are also unaware that there can be criminal liability associated with a breach of planning control. It is not a criminal offence to carry out development without planning permission, however if an Enforcement Notice is served, failure to comply with this Notice is a criminal offence.

Additionally, Local Authorities have increasingly been using the Proceeds of Crime Act 2002 in addition to the criminal proceedings. Once a conviction for breach of an Enforcement Notice has been obtained, the Local Authority can apply for a confiscation order, requiring all profits made from the crime (being the breach of planning) to be surrendered. This has been used to great effect, including recovery of hundreds of thousands of pounds of profit relating to an unauthorised park and ride facility at Stansted Airport.

The relevance of the ‘intention’ of the party who carried out development without planning consent has also now been extended by the Government to have an impact on the way retrospective planning applications are decided.

Retrospective applications have, to date, always been assessed on the planning merits of the scheme, in the same way as other planning applications. However on 31st August 2015, the Government issued a new Planning Policy Statement relating to unauthorised development.

The Statement says that from immediate effect it is to be a new material consideration in the assessment of any planning application if the development was intentionally carried out in advance of obtaining planning consent. The justification for this given is that where development has already taken place, there is no opportunity to appropriately limit or mitigate the harm caused.

It is not quite clear how this will work in practice. Presumably this will only be a justification for refusing a scheme where there has actually been harm as a result of the development which now cannot be mitigated, rather than affecting all retrospective applications.

The impact of this new policy remains to be seen, however the steps taken by the Government in recent years will undoubtedly make the risk of carrying out development without planning permission less attractive.

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About the Author
Rosalind Andrews, Partner Planning & Highways
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