Planning law in property transactions - Enforcement: time limits and local authority powers

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Overview

Effective planning law enforcement is vital for legal professionals in property transactions and essential for SQE1 FLK2 exam preparation. This article provides a detailed examination of enforcement processes, timelines, and the powers of local entities in planning law. By analyzing the legal framework, practical applications, and strategic considerations, we equip you with the necessary tools to manage this area of practice.

Legal Framework for Planning Enforcement

The Town and Country Planning Act 1990 (TCPA 1990) governs planning enforcement in England and Wales. This Act, with alterations, grants local planning authorities (LPAs) various powers to address planning control violations.

Relevant sections of the TCPA 1990 include:

  • Section 171A: Defines planning control breach
  • Section 172: Allows LPAs to issue enforcement notices
  • Section 187A: Enables issuing of planning contravention notices
  • Section 183: Provisions for stop notices
  • Section 187B: Permits LPAs to pursue injunctions

Enforcement Mechanisms and Timelines

LPAs must follow specific timelines when addressing planning control violations. Understanding these timelines is essential for property owners and legal professionals:

  1. Operational Development (Building Works)

    • Timeline: 4 years from substantial completion
    • Legal Basis: Section 171B(1) of TCPA 1990
    • Example: Constructing an unauthorized extension

  2. Change of Use to a Single Dwellinghouse

    • Timeline: 4 years from the event
    • Legal Basis: Section 171B(2) of TCPA 1990
    • Example: Transforming a commercial property to residential without permission

  3. Material Change of Use (Other than to a Single Dwellinghouse)

    • Timeline: 10 years from the event
    • Legal Basis: Section 171B(3) of TCPA 1990
    • Example: Utilizing agricultural land for industry without planning permission

  4. Breach of Planning Condition

    • Timeline: 10 years from occurrence
    • Legal Basis: Section 171B(3) of TCPA 1990
    • Example: Not implementing required landscaping from a planning condition

Note: These timelines are not applicable if there is deliberate concealment, as in Welwyn Hatfield Council v Secretary of State for Communities and Local Government [2011] UKSC 15.

Enforcement Tools Available to Local Authorities

LPAs possess several tools to manage planning breaches, each with a specific function:

1. Planning Contravention Notice (PCN)

  • Legal Basis: Section 171C of TCPA 1990
  • Purpose: Gather information about suspected violations
  • Key Points:
    • Requires details on activities
    • Non-compliance or false information is a criminal offense

2. Enforcement Notice

  • Legal Basis: Section 172 of TCPA 1990
  • Purpose: Specify steps to rectify a violation
  • Key Points:
    • States the violation and required actions
    • Includes a compliance period
    • Appealable to the Secretary of State

3. Stop Notice

  • Legal Basis: Section 183 of TCPA 1990
  • Purpose: Immediately halt unauthorized activities
  • Key Points:
    • Used with an Enforcement Notice
    • Typically effective 3 days after service
    • Severe penalties for non-compliance

4. Breach of Condition Notice (BCN)

  • Legal Basis: Section 187A of TCPA 1990
  • Purpose: Enforce compliance with planning conditions
  • Key Points:
    • No appeal rights
    • Specifies compliance steps
    • Non-compliance is a criminal offense

5. Injunction

  • Legal Basis: Section 187B of TCPA 1990
  • Purpose: Stop serious planning control violations
  • Key Points:
    • Requires court approval
    • Can prevent anticipated breaches
    • Non-compliance may lead to contempt of court

Practical Application and Case Studies

Case Study 1: Unauthorized Development

Scenario: A property owner constructs a two-story extension without permission. The LPA discovers the violation three years later.

Analysis:

  • The 4-year rule applies
  • LPA has one year for action
  • Options:
    1. Issue an Enforcement Notice for modification or demolition
    2. Invite a retrospective application
    3. Take no action if considered acceptable

Legal Consequences:

  • Enforcement Notice appeal rights under Section 174 of TCPA 1990
  • Grounds include the potential for granted permission (ground (a))

Case Study 2: Material Change of Use

Scenario: A home operates as an unauthorized HMO for 8 years without permission.

Analysis:

  • The 10-year rule applies
  • LPA has two years for action
  • Considerations:
    1. Issue a Planning Contravention Notice for evidence
    2. Serve an Enforcement Notice to cease use
    3. Determine if the use is lawful due to time lapse

Legal Consequences:

  • Apply for a Lawful Development Certificate under Section 191 of TCPA 1990
  • Applicant must prove continuous use for 10 years

Strategic Considerations for Legal Professionals

When advising on planning enforcement, consider:

  1. Timelines: Assess the event date and enforcement viability.

  2. Evidence Gathering: Advise on maintaining records for lawful development claims.

  3. Negotiation with LPAs: Explore breach regularization via applications or negotiations.

  4. Appeal Strategies: Evaluate appeal grounds and chances of success.

  5. Compliance Costs: Weigh costs against pursuing regularization.

  6. Reputational Risks: Consider impacts on future applications and authority relations.

Conclusion

Planning law enforcement presents a challenging aspect of property law, requiring a comprehensive understanding of statutes, case law, and practical outcomes. SQE1 FLK2 candidates should familiarize themselves with these aspects to succeed in both exams and professional practice.

Key takeaways:

  • Understand TCPA 1990's function in planning enforcement
  • Recognize timelines for different violations
  • Familiarize with various enforcement instruments of LPAs
  • Apply knowledge to practical situations
  • Strategize effectively when advising on enforcement matters

As the built environment transforms, the ability to manage planning enforcement will remain essential for legal experts in property.