How Can Developers Prepare For The Planning Enforcement Legislation Change?

Many of the provisions from the Levelling-Up and Regeneration Act 2023 are being coming into force on the 25th of April 2024. Most notably, core changes to the planning enforcement regime are included.

In this article, Alexandra Hastings-Smith and Leenamari Aantaa-Collier of our Planning team will discuss how developers can prepare for this change:

Extension to Time Period for Enforcement

Starting with the extension to the time for Local Planning Authority’s (LPA) to take enforcement action, Leenamari explains that this will be the most crucial change for developers and LPAs, which takes place this week.

There will be transitional arrangements in place, meaning that the change in law will not apply where the building works are substantially complete or the breach of planning control occurred before the 25th of April 2024.

As such, Leenamari feels that many of the cases for the initial years will focus on how the land appears today (24th of April 2024) on various sites.

Leenamari recommends that:

• Developers take photos of the site;
• Collate any other evidence that proves that if there has been a breach of planning control and the Council takes an enforcement action, then evidence is there to show that the breach occurred before the 25th of April 2024 or that the development was substantially complete; and
• Consider whether a Certificate of Lawfulness is required to regularise any planning breaches, or whether a retrospective consent is needed.

Advice should be taken sooner rather than later on these issues to ensure that developers are not unfairly punished by the legislation.

Temporary Stop Notices

LPAs are now able to issue a temporary stop notice if unauthorised works have been or are being carried out to a listed building or there is a breach of listed building consent, and the LPA considers it expedient that the works are stopped immediately.

The LPA will have 56 days to investigate a suspected breach instead of the previous 28 days, which may have huge financial consequences. In addition, contravention of the notice will be a criminal offence.

This means avoiding a temporary stop notice being served on your site (as a developer) will be crucial if it seems that the works are deviating from the permission.

Leenamari says,

“It is crucial that developers take legal advice as soon as possible. This is because, as above, the serving of a notice may have serious consequences (including financial) for the developer. The developer needs to ensure that they begin evidencing any loss suffered and that the correct legal process has been followed with Council’s considering the cost implications if they have served a temporary stop notice unnecessarily.”

Enforcement Notice Warning

LPAs also now have the possibility of issuing an “Enforcement Warning Notice” (EWN). This is new to the planning enforcement regime. The intention is that this can be issued where the breach isn’t substantial enough for an enforcement notice (yet) and may be regularised.

The EWN may require the developer to submit a retrospective planning application or variation of a planning condition application within a certain time frame. This is to try and reduce the number of enforcement notice appeals being brought to the Planning Inspectorate because permission should have been granted or the condition concerned should have been discharged.

Leenamari says:

“It is important legal advice is sought at the first available opportunity for a strategic approach to the matter rather than waiting until the end where there are more problems and options have become limited.

As such, any requests made by the Council for retrospective applications must be thoroughly considered as they may have consequences on contributions sought by the LPA under a section 106; CIL liability changes; the ability to develop the land in the future and unnecessary/unwanted planning application.”

Alexandra adds:

“Crucially, it will also be important to get advice to ensure that procedurally the Council has been correct in the way that the notice has been served. Crucially, legal advice is required as soon as possible to ensure that the developer does not suffer any unintentional serious legal consequences.”

Wilkes regularly advises clients on enforcement action and applications for certificates of lawfulness. If you have any queries or further questions, please contact Leenamari or Alexandra on 0121 233 4333.