The court has the discretion to make an order, but it should normally do so where (a) the breach is actionable; (b) no defence exists; (c) the authority has served a sec. 288 notice, and (d) compliance with an enforcement order will cause less prejudice than making it an open-ended situation.
The test for granting such orders can be seen in the case of Hounslow London Borough Council v Twickenham Garden Developments Ltd . However, there is no strict rule governing how many times an owner must fail before they are able to obtain one of these orders. Each case needs to be determined on its own merits.
When can a Council apply for an Order?
The council may start legal proceedings to obtain a Planning Enforcement Order at any time during the compliance period (the period of time available to an owner to comply with planning control). Failure by an owner to comply with the order will result in the authority applying for a committal warrant and ultimately recall of the warrant if no breach has been committed within six months of it being issued.
How is the Process Initiated?
A local authority must serve notice under s288(1) on an owner who is carrying out development without permission, or in contravention of other regulations governing the use of land. The notice details all matters that appear to the local authority to be material to the authority’s decision whether or not to make an application for a Planning Enforcement Order. There are strict timelines attached to the service of this notice, so it is imperative that any s288(1) notice sent by a council is served within the requisite time period
After receipt of an s288(1) notice an owner has 21 days in which to give their observations on the matters contained within the notice. If they fail to do so then it will be inferred that there are no relevant issues that require consideration. After receiving observations back from the owner, if all conditions have been met, then an application may be made for a Planning Enforcement Order before the court.
What are some Defences?
If proceedings have been commenced by a council against an owner, the only defences available are either that there was no breach of planning control, or that an actionable breach occurred but has since been remedied. If the council is granted leave to enter onto land then this would amount to trespass and be actionable under s68 of the Criminal Justice and Public Order Act 1994.
What are some Consequences of not obtaining a Planning Enforcement Order?
A breach of conditions attached to a permitted development right requires reinstatement of land back into its pre-existing condition. This type of breach is non-actionable and does not require enforcement proceedings. However, it should be noted that failure to comply with an Enforcement Notice can result in prosecution proceedings being initiated by a local authority or forfeiture of a right to develop under s237 GDO.
If the owner fails to comply with an enforcement order, then proceedings may be initiated by the local authority for breach of condition and ultimately for contempt of court. Failure on behalf of an owner to comply with the order will result in a committal warrant being issued against them and enforced upon their arrest.
There are a few different effects of being issued with a Planning Enforcement Order. One of the biggest effects is that it will mean you have to comply with the order’s conditions. It will also be up to you to enforce any of the conditions that have been set out in the order. You can face a fine if you fail to do this within 28 days, and these fines can start at £5,000. If you don’t take action before six months from when enforcement notice was given then additional time-limited fines may be imposed for each day where the failure continues. If these fines aren’t paid within 28 days, then they will be increased.
Where Planning Enforcement Orders are Contemplated?
This type of action will usually arise if an owner fails to take reasonable steps to ensure that their tenant does not carry out unauthorised works on their premises. This action is also common in shopping centre management disputes where store owners have carried out work without first obtaining consent from the landlord or other occupiers.
Enforcement Action against Occupiers A local authority can, as a result of carrying out works without planning permission undertake enforcement action against the occupier under sec. 211. This will be an evidential burden on the local authority, so it is advisable for councils to keep detailed records of correspondence with occupants and copies of site visits reports
Injunction Action following Enforcement Proceedings
Where there has already been a prosecution by a council for a breach of planning control, then an aggrieved owner may look to their legal team to raise proceedings for nuisance or disturbance caused as a result of that breach. If successful in obtaining this injunction then only an appeal by way of judicial review would be able to overturn this decision.
Do I have any other options?
An application can be submitted as long as you have enough evidence to demonstrate that there has been a breach of planning control, which is actionable under sec. 211 GDO. You can appeal against decisions made by the Secretary of State within 21 days of being made, or within 28 days of being notified of the decision. The council will not be able to take action if this appeal has been lodged first.