Planning enforcement orders and how they apply to mixed-use planning units

21st January 2022

Where there has been an apparent breach of planning control that has been deliberately concealed, a planning authority can apply to a magistrates’ court for a planning enforcement order. This will permit the authority to take enforcement action within a year, starting within 22 days of the order, notwithstanding any expiry of the statutory time limits for enforcement.

However, does the benefit of a planning enforcement order, in relation to planning immunity, apply to all uses in a mixed-use planning unit if the apparent breach was only one of the uses? This was the issue in Payne v Secretary of State for Levelling Up Housing and Communities [2021] EWHC 3334 (Admin).

Mr Payne owned a farm consisting of a house and fields. In April 2009 the house burned down. He temporarily moved into a caravan and that year converted a building into a day room and a garage into a bungalow. He rebuilt the main house and put the whole property up for sale in 2010. It was sold in June 2011, excluding the land consisting of the conversions as the buyer did not want the whole site.

In February 2019, Maldon District Council secured a planning enforcement order from the local magistrates’ court relating to the conversion of the garage. In February 2020, the council then issued an enforcement notice in respect of the retained land for an alleged unauthorised change of use. They argued that the land use had changed to a mixed-use site consisting of external and internal storage, a workshop and a caravan site. It was also noted that part of a building was used for residential purposes.

Mr Payne appealed the enforcement notice, but this was dismissed by a planning inspector. The inspector found that, as the planning enforcement order enabled enforcement of one of the mixed uses, it must extend in scope and effect to the mixed-use planning unit as a whole.

The inspector also found that the mixed uses of the planning unit described in the enforcement notice began when part of the property was sold in 2011 – not in 2009 when the house burnt down. Mr Payne challenged the above two findings at a judicial review.


On the first ground of challenge, Mrs Justice Lang agreed that the inspector had erred in law by applying the benefits of the planning enforcement order to all the uses in the mixed-use planning unit. She found that a planning enforcement notice made in respect of one use does not affect the operation of the statutory time limits in respect of the remaining uses.

She noted that planning authorities have discretion as to which breaches of planning control they enforce against. Therefore, even where there is a mixed use, the authority may find it practical to issue an enforcement notice in respect of individual aspects of the unauthorised use. Therefore, it is not necessary to enforce against the entirety of the mixed use to enforce against the specified breach in the planning enforcement order.

However, Mrs Justice Lang dismissed the second ground of challenge concerning the finding that the change of the mixed use specified in the enforcement notice occurred upon the sale of part of the property in 2011 was irrational.

Why is the decision important?

This case highlights the limited scope of planning enforcement orders and the need for planning authorities to carefully consider the planning uses and planning units when applying for such orders and drafting enforcement notices.

For owners and occupiers faced with enforcement, they should always individually assess each planning use and planning unit. In relation to planning enforcement orders, they should ensure that the order only covers concealed planning uses so as not to compromise the immunity on any other uses (especially those in a mixed-use planning unit). In relation to planning enforcement notices, they should consider the merits of an appeal not just on the mixed uses of a planning unit as a whole but also each use individually.

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