Planning enforcement changes incoming in LURA

 The Levelling Up and Regeneration Bill received Royal Assent on 26 October 2023. This piece of primary legislation needs to be supplemented by secondary legislation (i.e. regulations made by the relevant Ministers) and so for the purposes of this article, it is important to note that the changes detailed here are not yet in force and will only come into force upon the passing of such secondary legislation in due course. It should also be noted that this applies only to development of land in England.

This is a summary of the legislation only and cannot be considered legal advice and there remains more detail within the legislation itself.

The changes on planning enforcement will deal with:

• Commencement Notices

s.111 of the Levelling Up and Regeneration Act 2023 (“LURA”) amends the Town and Country Planning Act 1990 to insert a new section 93G ‘Commencement Notices’.

Section 93G provides that before a development is begun the person who is proposing to carry it out must give a notice (a “Commencement Notice”) to the local planning authority specifying the expected date upon which development is to begin. Once that notice is given the person can vary the date by giving a further Commencement Notice (which is a requirement, if development is not commenced on the date previously given).

NOTE: this a new requirement.  Its intention seems to be to enable local planning authorities to monitor the pipeline of intended development work, and so of estimated housing numbers delivery.

In the event of a failure to comply with the requirement to submit a Commencement Notice, the local planning authority may serve a notice on a relevant person requiring that such relevant person gives the information that the commencement notice would otherwise prescribe. If the person served that notice, then fails to give the information required within 21 days the relevant person can then be liable on summary conviction to a fine.

The relevant person here is (a) the person who is required to submit the commencement notice and (b) any person who owns or occupies the land to which the planning permission relates.

The new s.93G(8) provides that there will though be a defence to prove that there was a reasonable excuse for failing to provide the information required.

• Completion Notices

s.112 of LURA amends the Town and Country Planning Act 1990 to insert a new section 93H ‘Completion Notices’.

Section 93H applies where:

• Planning permission is subject to a condition that it must be begun before the expiry of a particular period and the development has begun but has not been completed;
• Development has begun in accordance with a simplified planning zone scheme but has not been completed before the area ceases to be a simplified planning zone;
• Development has begun under an enterprise zone scheme but has not been completed before the area ceases to be an enterprise zone;
• Planning Permission under a neighbourhood development order is subject to a condition that it must be begun before the expiry of a particular period and the development has begun but has not been completed; or
• Planning Permission under a street vote development order is subject to a condition that it must be begun before the expiry of a particular period and the development has begun but has not been completed.

Section 93H(2) gives the local planning authority, who must be of the opinion that the relevant development will not be completed within a reasonable period, the power to serve a notice (a “Completion Notice”) stating that the relevant permission will cease to have effect at a specified time. This specified time must be at least 12 months after the service of the Completion Notice and, where served in the scenarios (a) and (d) above, and before the end of the period during which permission is to be commenced, at least 12 months after the end of that period. Practically therefore, if you assume a 3-year window to ‘commence’ development, a Completion Notice must not provide for a deadline any sooner than 4 years from the date of the permission itself.

The form of the Completion Notice must contain prescribed information and must include details of the right to appeal the notice.

The Completion Notice must be served on the owner of the land and if different, the occupier of the land as well as a person with an interest in the land (which interest may be materially affected by the notice).

Where a Completion Notice is served an appeal can be brought on the following grounds:

• The development will be completed within a reasonable period;
• The deadline set out in the Completion Notice is an unreasonable one;
• The notice was not served on the right people.

The Regulations (yet to be enacted) will include provision for how and when such an appeal may be brought and the timelines for responses etc. On appeal though, the Secretary of State can either quash the completion notice, vary the completion notice (by substituting a later deadline date) or uphold the original Completion Notice.

At the point of the Completion Notice deadline the planning permission to which the completion notice relates then becomes invalid (subject only to a pending appeal). It is though worth noting that the invalidity of the permission does not affect any development carried out pursuant to the permission before the Completion Notice deadline.

NOTE: With ongoing delays at the Land Registry and the registration gap (being the point between the sale of the land and the registration of the transfer occurring at the Land Registry) continuing to be many months long, careful consideration may need to be given to protecting ‘former’ landowners not involved in any development from the repercussions that may arise from the service upon them of any Commencement Notice or Completion Notice.

NOTE: Whilst the legislative changes here are designed to help ensure that developments are progressed so as to improve the delivery of new houses, there remain bigger issues in play with regards to the planning system as a whole, not helped of course by cash strapped and under-resourced local planning teams. It remains to be seen how local planning authorities will deal with these new powers to serve notices in this way and how these powers may be applied. It appears though that these powers may not necessarily be applied fairly or evenly across the sector, with the impacts of a Completion Notice on a small or medium sized housebuilder being felt differently to a large one.

• Enforcement Time Limit

s.115 of LURA amends section 171B of the Town and Country Planning Act 1990 by deleting the words ‘four years’ and substituting them with ‘ten years’.

This means that, when this section comes into force the time limit for enforcement action to be taken for a breach of planning control in England will now be 10 (ten) years (NOTE: no longer 4 years) beginning on the date the operations were substantially completed.

s.117 of LURA also introduces a new ‘Enforcement Warning Notice’. This is effectively a tool for a local planning authority to issue an Enforcement Warning Notice where it appears to them that there is a breach of planning control but there is also a reasonable prospect that, if an application is made, permission would be granted. In giving this notice, it is to be made clear that unless an application for planning permission is made within a period (specified in the notice) then further enforcement action may be taken. It is though also worth noting that the service of this Enforcement Warning Notice also stops the clock on ‘immunity’ from enforcement action (even though it is short of taking full enforcement action).

NOTE: If you have a property where there is currently unlawful operational development that is not already immune from enforcement action, then you may want to consider what steps might need to be taken to protect against enforcement action.