The Planning Enforcement Order is one of the legal mechanisms available for dealing with certain types of planning breaches. These orders are normally granted against owners who have carried out development without planning permission, or in contravention of other regulations governing the use of land.

What are the Grounds for Obtaining an Enforcement Order?

The different grounds upon which a Planning Enforcement Order can be obtained depend on whether the breach is ‘actionable’ or not. Actionable breaches are breaches of planning control that is sufficiently serious to justify legal action. Non-actionable breaches are less serious, usually minor breaches of planning control that does not require enforcement action to bring them back into line with permission.

Actionable Breaches

If development is carried out without prior approval, it is likely to be an ‘actionable breach’. These types of cases will normally involve significant developments such as the construction of a large number of homes.

For example, in the case of Mayfair Properties Ltd v Westminster City Council [2010], the action was brought by Westminster City Council against Mr Maqsoudlou and 12 other defendants after unauthorised works were carried out to the basement and ground floor of a building on Burton Street in central London. The Building Control Act 1990 (the Act) imposes obligations upon those carrying out certain types of work with respect to buildings, including obtaining an ‘elective licence’ before carrying out such work. However, no such licence had been obtained for the works undertaken to the basement and ground floors at Burton Street.

Non-actionable Breaches

The most common ground on which a court will make a Planning Enforcement Order is where development is carried out in breach of conditions attached to a permitted development right under Class A of Schedule 2 to the Town and Country Planning General Development Order 1995 (the GDO). In general, this type of breach only requires an owner to reinstate their land back into its pre-existing condition. This type of breach is non-actionable and does not require enforcement proceedings.

What are the requirements for obtaining a Planning Enforcement Order?

In order to obtain a Planning Enforcement Order, councils should apply to their local authority. This is where the owner or occupier of land will also need to be informed about proceedings that could result in a fine or an injunction. Councils can submit their application as long as they have enough evidence to demonstrate that there has been a breach of planning control, which is actionable under Sec. 211 of GDO. 

The council will not be able to take action if the appeal has been lodged first. The court would need to be satisfied that there has been a breach of planning control and that it will not be unreasonable to grant the order in the circumstances. The court’s decision would be based upon all relevant evidence which includes any reports by an LPA or other professional advisors

On-Site Inspection

Before making an application for a Planning Enforcement Order, councils should carry out an on-site inspection. This allows them to determine whether the necessary evidence is available to enable them to demonstrate that there has indeed been a breach of planning control, which is actionable under sec. 211 of GDO. If this inspection reveals no further information then written confirmation should be provided to either the owner or occupier if they are able to identify themselves accurately.

When is an on-site inspection necessary before making an application for a Planning Enforcement Order?

Local authorities should always carry out an on-site inspection before making an application for a Planning Enforcement Order. This allows them to identify whether the necessary evidence is available in order to prove that there has been a breach of planning control, which is actionable under sec. 211 GDO. If this inspection reveals no further information then written confirmation should be provided to either the owner or occupier if they are able to identify themselves accurately. Apply for a Planning Enforcement Order to the Local Authority.