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Planning matters

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New English enforcement provisions – more time – greater penalties  
New planning enforcement measures and changes to some existing measures, which would collectively give Local Planning Authorities (LPAs) in England enhanced enforcement powers and the possibility of imposing greater fines for non-compliance with planning control, are coming into force soon. Many of the enforcement provisions in the Levelling Up and Regeneration Act 2023 (LURA) will come into force on 25th April 2024. 
I outline below the new enforcement provisions likely to be of most interest to Lichfields clients, the two of most relevance being:
  • the proposed change to enforcement time limits, which will be relevant when carrying out due diligence on potential site purchases, and
     
  • the potential relief on enforcement of certain conditions in certain instances.
   

Time limits for enforcement extended to 10 years for all types of breach

Section 115 of the LURA is to amend the Town and Country Planning Act 1990 (TCPA) so that, in future, all breaches of planning control would only be exempt from enforcement action after ten years, subject to transitional arrangements (see below). The time limit for enforcement action to be taken for a breach of planning control in England will now be ten years beginning on the date the operations were substantially completed. This is substantially longer than the previous time limit of four years.
Section 171B of the TCPA (time limits) will be changed so that, in subsection (1), “four years” will be replaced with “ten years”, so that the time limit will be “ten years beginning with the date on which the operations were substantially completed, and in the case of a breach of planning control in Wales, four years beginning with the date on which the operations were substantially completed”.
 

Transitional provisions

There are transitional arrangements, relating to when the certain breaches took place or unlawful works were substantially completed.
Section 171B(1) of the TCPA currently provides that “Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed”.
If any of those operations were substantially completed on or before 24th April 2024, the four year rule would apply to those operations.
Section 171B(2) currently provides enforcement limits relating to the change of use to a single dwelling house “Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach”.
A commencement regulation[1] provides that the new time limits for enforcement do not apply where the change of use breach occurred, before the day on which that section comes into force – i.e. the breach commenced on 24th April 2024 or earlier and continued for four years or more up to the date it is eventually investigated. However, there may be difficulties in developers proving when a breach has occurred in order to determine whether or not the four year rule applies. Documentary evidence will help, such as utility bills or council tax for example, but there may be a need for those involved to provide statutory declarations to substantiate a case, for example.
While LPAs will soon have much longer to take enforcement action relating to operational development or change of use to a dwelling, it may become apparent that neighbours will need to tolerate planning breaches for longer periods of time, as under resourced LPAs will have no incentive to action enforcement within four years, for any breach. The system could allow LPAs to wait over nine years before taking enforcement action for any breach. This could encourage applicants to breach planning control, although the possibility of paying greater fines for non-compliance (discussed further below) may cause potential offenders to think again.
Having a long time period for enforcement to be carried out before a development becomes lawful will also create informal opportunities to test the impacts and even benefits of a use. Demonstrating the expediency of taking enforcement action after say, eight years, where no complaint has arisen or there have been no significant detrimental impacts may be difficult.
 

Duration of temporary stop notices extended in England

Section 116 of the LURA has been amended so that, from 25th April, English local planning authorities can issue temporary stop notices that have effect for up to 56 days, while the maximum duration would remain 28 days in Wales.
The changes do not apply where a temporary stop notice has already been issued and not withdrawn before the day on which that section comes into force.
 

New: Enforcement warning notices

Section 117 of the LURA will allow an ‘Enforcement Warning Notice’ (EWN) to be issued. From 25th April, an EWN could be used where an officer considers that a breach of planning control can be resolved and a retrospective planning application would regularise the breach in planning control.
New Section 172ZA would enable LPAs in England to issue an EWN asking the individual to submit a retrospective planning application within a specified period.
The EWN must state the matters that appear to constitute a breach of planning control and state that, unless a planning application is made within the specified period, further enforcement action may be taken. The EWN would be served on the owner or occupier of the land to which it relates and on any other person with an interest in the land.
 

Restriction on appeals against enforcement notices

Section 118 introduces restrictions on appealing against enforcement notices on the ground that planning permission ought to be granted or that a condition or limitation attached to a planning permission ought to be discharged.
Once commenced, there will be limited opportunity to apply for retrospective planning permission, as it will not be permitted to appeal against an enforcement notice if permission was previously refused for the relevant development within the last two years. This will offer much less opportunity to regularise planning breaches, as is currently available, as appeals can currently be made against enforcement notices even if the application for the development was previously dismissed on appeal.
The changes do not apply if an enforcement notice has already been issued and not withdrawn before the day on which that section comes into force.
 

Undue delays in appeals

Section 119 of the LURA will introduce provisions allowing the Secretary of State to dismiss appeals if the appellant is judged to be causing undue delay in the progression of an appeal. The Secretary of State will give the appellant notice that the appeal will be dismissed unless the appellant takes specified steps within a specified period.
The changes do not apply if an appeal against an enforcement notice has been made and not withdrawn, and an appeal against that enforcement notice has been made before the day on which that section comes into force.
The changes will also not apply in circumstances where an application has been made for a certificate of lawfulness of existing use or proposed use and an appeal has been lodged on the grounds of refusal or failure of the LPA to give a decision before the day on which that section comes into force.
 

Some financial penalties for non-compliance to be increased

On 25th April 2024, the fines payable for non-compliance with a breach of condition notice or for non-compliance with a section 215 notice will be increased. If the land is in England, the fine for breaching a section 215 notice will be one-tenth of the greater of (i) £5,000 or (ii) level 4 on the standard scale of fines in the Criminal Justice Act 1982 [2].
There will be no limit on the fine that can be imposed for disregarding a breach of condition notice. The current maximum fine is £2,500 for breach of condition notices in England. 
 

Changes to compensation for loss or damage caused by service of a building preservation notice

A provision that will require English LPAs to consult with Historic Buildings and Monuments Commission for England before serving a building contravention notice and removing the right to claim compensation for building preservation notices (BPN) in England comes into force on 25th July 2024. A BPN is a means for an LPA to protect a building that might have special architectural or historic interest, but that is in danger of demolition or alteration in such a way as to affect its character. It protects a building for six months, which allows Historic England to carry out an assessment of the building for listing.
As my colleague Amy Booth noted in her earlier blog, it is a significant change to heritage legislation that those with an interest in a building which has a BPN served on it in England will no longer be entitled to claim compensation from the LPA. This is because it will likely lead to more LPAs applying for these notices, as the risk of compensation claims would be removed.
 

Still in the wings - potential power to provide relief from enforcement of planning conditions

In due course, new powers are likely be introduced that will permit the Secretary of State to control when and how enforcement action takes place, or to provide that LPAs may not take action in given circumstances.
New Section 196E (power to provide relief from enforcement of planning conditions) was inserted into the TCPA on 26 December 2023, but requires regulations in order to have effect.
Section 196E would permit the SoS to make regulations stating that an LPA may not take, or is subject to specified restrictions in how it may take, “relevant enforcement measures” in relation to any actual or apparent failure to comply with a “relevant planning condition”.
A “relevant enforcement measure”[3] is anything which may be done by a local planning authority in England for the purposes of investigating, preventing, remedying or penalising an actual or apparent failure to comply with a relevant planning condition. This change would allow greater flexibility in the enforcement regime. Instead of issuing specific persuasive but non-binding guidance regarding taking enforcement action, for example as the Government did regarding delivery hours conditions etc. during the height of the Coronavirus pandemic, the Government would be able to rely on these new laws.
Enforcement of non-compliance with planning conditions that relate to time limits, the ‘biodiversity gain condition’ and the condition relating to ‘development progress reports’ (not yet in force, regulations needed) could not be controlled by these new enforcement provisions.
 

Potential future policy – taking past behaviour into account in decision-making  

While the provisions to be introduced do not directly apply the enforcement-related provisions proposed in Private Members Bills in recent years, they do reflect the current Government’s desire to appease the concerns of backbenchers. In this vein, the current Government has had intentions and to develop further policy and legislation to discourage planning breaches, which now appear to be on hold.
When announcing the coming into force of the above-mentioned enforcement provisions, in his December 2023 Written Ministerial Statement, the SoS referenced the December 2022 Levelling-up and Regeneration Bill: reforms to national planning policy consultation:
“I consulted to explore whether an applicant’s past behaviour should be taken into account in decision making either through making irresponsible behaviour a material consideration or allowing local planning authorities to decline applications from applicants with a bad track record. Both options would require primary legislation and therefore are beyond the scope of this NPPF update. I welcome views expressed in the consultation and will consider these carefully in further policy development”.

Closing thoughts

The new enforcement measures coming forward on 25th April and the later anticipated changes, when taken together, represent a considerable shift in the way planning enforcement is administered. LPAs will now have enhanced enforcement powers to deal with planning breaches and the ability to impose greater fines on those who commit the offences.
The increase in the time limit for enforcement action to be taken for a breach of planning control in England from four years to ten years is likely to have the greatest impact on the planning system. Stretched LPAs will now have longer to carry out enforcement action which could lead them to prioritise other actions which need more immediate attention and communities having to accept breaches in planning control for longer periods of time.
Some applicants may now be willing to breach planning control, if they feel they can avoid enforcement action for a longer time period. However, the introduction of EWNs and the increase in the amount of fines that can be applied to breaches should discourage such breaches and provide LPAs with greater flexibility when assessing enforcement cases.
Overall, the strengthening of the enforcement regime should engender greater respect for the planning system. It remains to be seen whether introducing further planning enforcement provisions and/or investing in planning enforcement resources are a priority for the next Government.
 
 

[1] Regulation 5 of the Planning Act 2008 (Commencement No. 8) and Levelling-up and Regeneration Act 2023 (Commencement No. 4 and Transitional Provisions) Regulations 2024[2] Standard scale of fines [3] Section 196E(5) defines relevant enforcement measure, “A relevant enforcement measure includes, in particular—(a)the exercise of a power under—(i)section 171BA (power to apply for planning enforcement order);(ii)section 187B (power to apply to court for injunction);(iii)section 196A (power to enter without a warrant);(iv)section 196B (power to apply for, and enter under, warrant);(b)the issue of—(i)a planning contravention notice under section 171C,(ii)a temporary stop notice under section 171E,(iii)an enforcement notice under section 172,(iv)an enforcement warning notice under section 172ZA,(v)a stop notice under section 183, or(vi)a breach of condition notice under section 187A.

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First it was the City of London leading the charge on adopting a ‘retrofit first’ approach to new development. Then it was Camden. Now Westminster is adopting the same approach.
Retrofit first means retaining and re-using existing buildings before pursuing other development options, including substantial demolition or total redevelopment where retrofit is not viable. Retrofit first involves understanding which development options would have the lowest embodied carbon intensity and operational carbon emissions. A retrofit first approach does not exclude other development options, but retention and re-use is the default position. 
There is an increasing focus on the retention of existing buildings, particularly their structures and foundations, which is where most carbon is stored. Such deep retrofitting is a feature of high profile schemes including Fleet House on new Bridge Street in the City where we obtained planning permission for Antenor in January 2023. A similar approach was adopted by the developers of 65 Gresham Street for a mixed use scheme in the City of London, which obtained planning permission in January 2024. 

Image credit: HOK Architects

Westminster commenced consultation on its City Plan 2040 at the end of March, with the aim of becoming a ‘retrofit first’ city. It proposes a dedicated policy on the ‘retrofit first’ approach; setting out a priority for the reuse and retrofit of buildings before demolition and redevelopment, and guidance on how different carbon options will be assessed within planning applications. The accompanying ‘Retrofit First and Reducing Embodied Carbon’ Topic Paper is clear that only GLA referrable schemes are currently required to submit a Whole Life Carbon Assessment, when the cumulative impact of lots of small and medium scale schemes could still be significant. As such, introducing restrictions on demolition, together with clear benchmarks on embodied carbon performance, will have a considerable impact in meeting wider net zero objectives in Westminster.
The City of London was the first authorities to move towards a retrofit first approach when it published its draft Carbon Options Guidance Planning Advice Note in 2022. It provides a framework within which developers assess and appraise lifetime emissions for different development options; including a deep retrofit, a refurbishment scenario or complete demolition and redevelopment. Developers are required to report, through a standardised dashboard, on how each option would reduce embodied carbon and operational carbon emissions.
This approach standardises carbon reporting at pre-application and planning application stages. The City of London was lauded for taking a pragmatic approach putting retrofitting first but with a clear acknowledgement that it is not always suitable or viable. The City will be consulting on its Regulation 19 Local Plan later this year which will propose a retrofit first policy, requiring all major developments to undertake an options appraisal exploring the potential for retaining and retrofitting, in accordance with the guidance set out in the Carbon Options Guidance Planning Advice Note.
LB Camden was the second to propose a retrofit first policy, through its draft Regulation 18 Local Plan published earlier this year. Development proposals will be required to undertake a feasibility assessment to demonstrate that retrofit, refurbishment and extensions have been explored before demolition is pursued.
Westminster now follows suit. The Regulation 19 Local Plan introduces New Policy 43 (Retrofit First- Prioritising Retrofitting Over Demolition) which states that development should adopt retrofitting and retention of existing buildings before considering demolition. Development proposals which involve substantial or total demolition will be required to justify the approach by an appraisal of construction options including refurbishment, retrofit, deep retrofit and newbuild- presenting the carbon costs and public benefits for each. The policy states demolition will be resisted unless certain conditions are met.
The GLA has also taken note. In February 2024, it stated that lessons should be learnt from the City of London on its retrofit first approach in its ‘Retrofit vs Rebuild’ paper (February 2024). Are we about to see the whole of London becoming a retrofit first city? Clearly it will be some time before the GLA is able to adopt such an approach, as this would need to come through the London Plan Review. In the absence of such a strategic policy and a very loosely worded NPPF, it is clear from the above that London boroughs are now taking matters into their own hands. So, who is next? We examine what is in the pipeline across London below
Other London Boroughs are coming forward with a similar approach. Specifically;  
  • Ealing, Enfield, Kingston, Merton, Richmond and Tower Hamlets are bringing forward policy or guidance adopting a ‘retrofit first’ approach. Overall, 9 out of 33 authorities (inc. City of London Authority) across London are seeking to adopt a retrofit first approach. 
     
  • Bromley, Hounslow and Kensington and Chelsea do not have an emerging policy or guidance coming forward on retrofit first; however, local plan reviews reference the potential for retrofit first principles in future iterations of policy.
     
  • Of the 9 LPA’s with emerging policy or guidance on a retrofit first approach; 3 require submission of a carbon optioneering appraisal of different development options including retrofit, deep retrofit and demolition and redevelopment (City of London, Camden, Westminster).
     
  • The remaining 6 LPA’s emerging policy relies on Whole Life Carbon Assessments. However two LPA’s (Ealing and Enfield) indicate within its draft local plans that further supplementary planning guidance will be prepared on ‘Carbon Optioneering’ methodologies.
We expect more local authorities to follow suit at pace before the London Plan Review picks things up at a strategic level. Underpinned by a desire and need to respond to the challenges presented by climate change in the property sector, retrofitting make sense, as long as it is presented only as a priority, with clear parameters set for when demolition is appropriate.
Many developers assess the relative merits and values of refurbishment versus redevelopment, whether or not they are required to by policy, but retrofit policies will inevitably constrain some developers from doing what they might want to do, and require more upfront detailed design development and appraisal work to be prepared and shared through pre-application processes if wholesale redevelopment is proposed.
For further details of this borough-level research and our experience and insight into this, please do get in touch.

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