If you have been served with a Planning Enforcement Notice, Zyda Law can help. We are specialist planning solicitors and, through our Planning Helpline service, we are able to take your case for an affordable fixed fee that is less than you might think.
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What is a Planning Enforcement Notice?
A Planning Enforcement Notice is the most common form of enforcement action taken by the Council. The Council may issue an Enforcement Notice on you where it appears to the Council that there has been a breach of planning control, and that it is expedient to issue the Notice, having regard to the development plan and any other material considerations.
A Planning Enforcement Notice can require you to take steps such as:
- to alter a building or remove it completely;
- to re-instate a building that has been demolished;
- to cease an activity that is being carried on;
- to secure compliance with any conditions imposed on a planning permission.
The actual steps required will depend on the breach of planning control that the Council believe to have occurred.
Compliance with a Planning Enforcement Notice does not discharge it. Instead, a Planning Enforcement Notice imposes a continuing obligation to comply with the requirements of the Notice.
Who can a Planning Enforcement Notice be served upon?
A Planning Enforcement Notice must be served on each of the following:
- the owner of the land;
- the occupier of the land;
- any other person having an interest in the land that is materially affected by the Planning Enforcement Notice. An example of this would be a person who benefits from an easement across the affected land.
The Council must take all reasonable steps to identify who should be served with the Planning Enforcement Notice. The Council could do this by serving a Planning Contravention Notice, carrying out a search at Companies House, or carrying out a Land Registry Search.
What Must a Planning Enforcement Notice Contain?
The Planning Enforcement Notice must contain the following:
- the matters which are alleged to constitute a breach of planning control;
- whether the breach relates to unauthorised development or a breach of a condition;
- the steps that the Council require you to undertake to remedy the breach of planning control. This could be by restoring the land to its condition before the development took place, or by securing compliance with any planning conditions;
- the compliance period within which the steps must be taken;
- the date the Planning Enforcement Notice takes effect (this must be more than 28 days following service of the Planning Enforcement Notice);
- the reasons why the Council considers it necessary to serve the Planning Enforcement Notice; and
- the precise boundaries of the land to which the Planning Enforcement Notice relates.
The Planning Enforcement Notice must be accompanied by an explanation that describes the right to appeal against the Notice.
The Council should ensure that the Notice is drafted in a clear and precise manner, to ensure that you understand the alleged activities that are in breach of planning control.
Can I appeal against a Planning Enforcement Notice?
You have a statutory right of appeal against a Planning Enforcement Notice. The appeal must be made in writing to the Secretary of State before the Planning Enforcement Notice is effective. If no appeal is made, the Planning Enforcement Notice will come into effect on the date specified in the Notice and it must be complied with. This can be as little as 28 days after service of the Notice.
If an appeal is made against the Planning Enforcement Notice, the Notice is suspended and does not come into effect until either the appeal is decided, or the appeal is withdrawn. This allows the unauthorised activities to continue without penalty. However, if the activity is harmful to the area, then the Council can issue a Stop Notice (please see our section on Stop Notices).
An appeal against a Planning Enforcement Notice can be made by any of the following persons:
- a person who has a legal or equitable interest in the land to which the Planning Enforcement Notice relates; and/or
- a relevant occupier.
Grounds of Appeal
There are seven grounds of appeal that you can rely on:
- Ground (a): that planning permission should be granted or the conditions attached to a planning permission should be discharged. This may involve the payment of a fee.
- Ground (b): that the activities alleged in the Planning Enforcement Notice have not happened.
- Ground (c): that the activities alleged in the Planning Enforcement Notice do not amount to a breach of planning control. For example, this could be because the development benefits from permitted development rights.
- Ground (d): that, at the time the Enforcement Notice was issued, it was too late to take enforcement action against the matters stated in the Notice.
- Ground (e): that copies of the Planning Enforcement Notice were not properly served on everyone with an interest in the land.
- Ground (f): that the steps required in the Planning Enforcement Notice exceed what is necessary to remedy the breach of planning control.
- Ground (g): that the period of time specified in the Planning Enforcement Notice falls short of what should reasonably be allowed.
An appeal can be made on multiple grounds. If you have been served with a Planning Enforcement Notice, it is essential to take urgent action. You may have as little as 28 days to appeal. We can advise on the validity of the Notice and what grounds of appeal would be the most successful to pursue.
The validity of a Notice can also be challenged by judicial review in the High Court, on the basis that there is some legal defect in the Notice and/or a legal error in the Council’s decision to serve it. Judicial Review is a complex process and, since you may have as little as 28 days to before the Planning Enforcement Notice takes effect, it is important to seek professional advice as soon as possible.
What happens if a Planning Enforcement Notice is not fully complied with?
A failure to comply with a Planning Enforcement Notice is a criminal offence, and you could be liable on conviction to an unlimited fine. In determining the amount of any fine to be imposed on you, the court shall have particular regard to any financial benefit which you have gained or are likely to gain from the consequence of the offence. If you do not pay the fine, then you could potentially face a prison sentence.
You could have a defence if you have not been served with the Planning Enforcement Notice, and the Notice is not contained in the Council’s register of enforcement action. However, even if you are not the owner of the land, if you have control of or an interest in the land to which a Planning Enforcement Notice relates, you can also commit an offence if you either carry on, or allow the unauthorised activity to be carried on. For example, if you were buying land that is subject to a Planning Enforcement Notice, then you would need to be aware that you could be liable for compliance with the Planning Enforcement Notice.
If you have been issued with a Planning Enforcement Notice, or you are being prosecuted by your local Council for failure to comply with an Enforcement Notice, it is important that you take legal advice straight away. Contact us for detailed advice on your individual situation.