Every year, I act for hundreds of homeowners and small developers who have received a planning enforcement notice from their local council demanding that they tear down a building or extension or reverse a change of use.
Councils in England served almost 4000 enforcement notices last year. Some of these targeted people who were deliberately gaming the system, but many were served on homeowners who thought they had done everything right and obtained the consents they needed and yet still received a knock on the door from an enforcement officer (they have an unfriendly habit of turning up unannounced).
The planning system is very complicated and constantly changing, and it is therefore very easy for people to try these best to follow the rules but still find themselves in hot water. Often it is because they got permission for an extension, but did not build it quite as shown on the plans. In other cases, they understood the project to be permitted development, only to find that it did not comply with the permitted development rules in some way.
Receiving an enforcement notice is a very serious matter. It is a formal legal document, and it can require you to carry out expensive works to your property, including demolish all or part of it.
You should always take professional advice, ideally from a chartered town planner, and it is almost always worth submitting a planning appeal against the enforcement notice.
Above all, you should never ignore an enforcement notice.
What is a Planning Enforcement Notice?
An enforcement notice is a legal document issued by the council. It alleges a specific breach of planning control and requires you to take certain steps to remedy that breach within a set timeframe.
It’s crucial to distinguish a formal notice from an initial informal letter or a planning contravention notice (PCN). A PCN is a request for information to help the council assess if a breach occurred. A formal enforcement notice is a legal document served by the council when it believes a breach has taken place and it wants to force you to correct it.
A formal enforcement notice must include:
- The specific allegation of the breach.
- The steps you must take to comply (e.g., demolish an extension, cease a particular use).
- The compliance period within which the steps must be completed.
- The date the notice takes effect (at least 28 days after it was served).
- The council’s reasons for considering the notice necessary.
- A plan showing the precise boundaries of the land affected.
The council serves a notice if they conclude you are unlikely to reverse the unauthorised development voluntarily and deem it ‘expedient’ (in the public interest) to legally compel you.
Notices are usually considered a last resort, often served because effective communication and negotiation have failed (which is why it is important to deal carefully with an enforcement investigation). Failing to comply with an enforcement notice once it has taken effect is a criminal offence and can lead to prosecution and fines.
Why Might You Receive an Enforcement Notice?
The complexity of the planning system makes it easy to inadvertently fall foul of the rules. Common reasons include:
- Carrying out development without planning permission when it was required.
- Misunderstanding or incorrectly applying Permitted Development (PD) rights. PD rules are complicated and ever-changing, and not all properties or developments qualify. Common errors include exceeding size or volume limits, or incorrect placement of features like dormer windows. PD rights also often do not apply to flats, most post-WWII houses, or houses in conservation areas.
- Failing to comply with planning conditions attached to an approved planning permission. Conditions might require specific materials, energy efficiency measures, or details approved before work starts (pre-commencement conditions). Starting work without discharging a pre-commencement condition means the permission hasn’t been lawfully commenced and can expire.
- Making minor alterations from the approved plans. Planning drawings are not ‘indicative’; they must be followed precisely. Even seemingly small changes technically require planning permission.
Enforcement investigations are typically triggered by a neighbour complaint. Councils don’t usually go looking for trouble, but they must investigate complaints.
It’s worth noting that there’s a ‘postcode lottery’ with enforcement; some councils, particularly in London, are much more proactive in serving notices than others (I am particularly active appealing enforcement notices in Brent, Hillingdon, Harrow, Barnet and Barking & Dagenham.
What To Do When You Receive a Notice
The single most important piece of advice is do not ignore an enforcement notice.
Ignoring it means the notice will take effect after the specified period (usually 28 days from service), obliging you to comply with its requirements. If you don’t comply, you commit a criminal offence. Once the notice has taken effect and the compliance period has elapsed, your options become severely limited, and you’ll likely need legal advice to challenge it. Many people ignore notices due to paralysis or hoping the problem will disappear, but this is a serious mistake.
Planning enforcement is a specialist area and you should seek professional advice immediately. This is not the time for casual advice from builders or informal chats with council planners. Planning and permitted development rules are complex, and even planners struggle with casual advice over the phone.
You need a chartered town planner or a solicitor with experience in planning enforcement. They can assess your situation, understand the complexities of planning law, research relevant cases, and determine the best course of action. Professional advice, even a small initial investment, can save significant heartache, time, and expense later.
Engaging with the Enforcement Officer
While you’re getting professional advice, it’s also wise to engage with the enforcement officer. Be honest, do not be evasive, and avoid being aggressive. Remember, they are doing their job, and an investigation isn’t a personal attack. Their job is to resolve breaches, not necessarily to punish.
Maintaining communication with the officer can be beneficial; you can request that they withdraw the notice while you explore options like submitting a retrospective application. Developing a rapport can also sometimes make them more open to negotiation on compliance timeframes.
Your Options Once You Have Professional Advice
Once you’ve consulted with a planning expert, they will help you understand the notice and your potential responses.
One option is simply to allow the notice to take effect and then to comply with it. This resolves the breach, but it is not the best option if there’s a chance of retaining the development.
In my view, it is almost always worth appealing an enforcement notice. Appealing buys you time (appeals typically take 9-12 months to be decided) and pauses the effect of the enforcement action. This means you can usually keep the unauthorised development in place while the appeal is considered. Appeals are decided by independent government inspectors from the Planning Inspectorate (PINS), taking the decision out of the council’s hands.
Grounds for Appeal and the Appeal Process
You can appeal an enforcement notice on several grounds:
- That planning permission should be granted for the development (essentially arguing that if you had applied, it should have been approved based on policies and material considerations).
- That there has been no breach of planning control.
- That the alleged breach has not occurred in fact.
- That it is too late for the council to take action (under the 4- or 10-year rules). This refers to the legal principle that if a development has existed undisturbed for a certain period (4 years for operational development like building work, 10 years for changes of use or breaches of condition), it can become lawful through the passage of time.
- That the notice was not properly served.
- That the requirements of the notice are excessive.
- That the period for compliance is too short.
Most smaller-scale enforcement appeals are decided through the written representations procedure. This involves submitting written arguments, usually followed by a site visit by the inspector (who will not discuss the case during the visit). There are typically no formal hearings or public inquiries for minor breaches. However, if you are appealing on the grounds that the development is immune from prosecution under the 4- or 10-year rules, a public inquiry is likely so evidence can be tested under oath.
Professional representation is very strongly recommended for enforcement appeals. Preparing a persuasive case, backed by evidence, can even lead the council to withdraw the notice before the appeal is decided, especially if they believe they are likely to lose.
Don’t Be Complacent – It Could Be You!
Few people set out deliberately to be in breach of planning control, but it is so easy to make a simple mistake that can end up being very costly.
If you are planning a development, make sure to obtain high quality plans from a good architect or designer and ensure that you build out your development exactly as shown on those plans. If there are conditions on your planning approval, you must comply with. If you are building using your permitted development rights, make sure you have interpreted them correctly and get a lawful development certificate (a confirmation that you are meeting the permitted development rules). from the council before you start.
Receiving a planning enforcement notice is undoubtedly stressful, but it is not the end of the road. The most critical first step is to avoid paralysis and immediately seek professional advice.
If you have received an enforcement notice, please contact me for some advice. I can help you understand the specific allegations, assess the validity of the notice, guide you on communication with the council, and determine the best strategy.
For more general advice on planning enforcement and planning appeals, check out my book: How to Get Planning Permission – An Insider’s Secrets.
The government’s guidance on planning enforcement is available here: https://www.gov.uk/guidance/ensuring-effective-enforcement.