Why it is unwise to ignore a planning enforcement notice

Of all the letters you might receive from your local planning authority, a planning enforcement notice is surely among the least welcome.

It means you – or activity you have been carrying out – has come to the attention of the local planners and they have deemed rules have been broken.

So why would you receive a planning enforcement notice? Local planning authorities have responsibility for taking whatever enforcement action may be necessary, in the public interest, in their administrative areas, and this covers planning.

There are two common scenarios which would prompt a planning enforcement notice. Either you have been carrying out development without the required planning permission; or you have failed to comply with any condition or limitation, subject to which planning permission was been granted.

If an enforcement notice is not appealed or withdrawn and it takes effect, or if an enforcement appeal is submitted but is unsuccessful, the requirements of that enforcement notice must be complied with, within the relevant compliance period.

Many homeowners, unfortunately, are tempted to ignore a notice, but as lawyers specialising in property law our advice is: do so at your peril.

In fact, while to undertake development without planning permission, or make changes to a building without planning permission is not usually an offence (unless a listed building is involved), failure to comply with an enforcement notice is a criminal offence.

Successful prosecution could result in heft fines. According to research by Planning Resource, the biggest enforcement penalty for 2020 was £309,011. This comprised a £20,000 fine, £27,174 costs and a £261,837 confiscation order.

Even if you avoid prosecution, the enforcement notice is sure to come back to bite you when you try to sell your house.

If you have already gone ahead with building work without permission, or have not complied with the conditions of planning permission, there is an element of time limitation.

Usually, the development will be immune from enforcement if no action is taken within four years of substantial completion for a breach of planning control consisting of operational development; within four years for an unauthorised change of use to a single dwelling house; or within ten years for any other breach of planning control (essentially other changes of use).

However, these time-limits do not prevent enforcement action after the relevant dates in certain circumstances. 

What if you have an enforcement notice on your property when you come to sell? Even if the relevant time has elapsed, if an enforcement notice is active it will be a red flag for any potential buyers and their legal advisers.

You’ll need to justify and explain what has happened and hope the buyers will accept this.

Indeed, you may have complied with an enforcement notice, but the local authority has not got around to removing this from your property.

Again, this needs explaining to buyers and the process of having an enforcement notice removed may not be quick.

Alternatively, lawyers on both sides will need to agree an indemnity in the exchange contract that both sides are happy with – and this takes time.

If you want to get on and sell your house, the last thing you need is a time-consuming hitch caused by an enforcement notice.

There is one bit of good news. The number of some types of planning enforcement action has declined in recent years. For example, 3,867 enforcement notices were issued in 2018/19, which was 30% lower than the number issued a decade earlier in 2008/09.

But don’t assume that means the planners are being more lenient. More likely, there have been fewer contraventions for them to get their teeth into.

The wisest course of action, before you do any building work or alterations, is to check whether planning permission is needed or if it falls into the category of ‘permitted development’ - work you are allowed to carry out without seeking formal planning approval.

Our advice is to avoid any activity which may lead to the planners issuing an enforcement notice. But, if you are unlucky enough to have one land on your doormat, then act quickly and seek legal advice.

For help and advice on all legal aspects of buying and selling property, please get in touch with Iain Mason, Head of Legal, at Optimum Professional Services: [email protected].