“A lack of enforcement officers in local planning authorities is resulting in fewer planning breaches being noticed or investigated and more breaches becoming regularised.”
That is the view of Mark Turner, a solicitor in FBC Manby Bowdler’s planning team, who explains: “At a recent meeting of Powys County Council’s Planning Committee, questions were raised by Councillors about how the occupation of a house in breach of a planning condition for in excess of 10 years had gone unnoticed by the Council.
“The condition in question required the house to be occupied by a person solely or mainly employed, or last employed prior to retirement, locally in agriculture or forestry. However, the owners contended that they had occupied in breach of the condition for in excess of 10 years and they consequently applied for a certificate of lawfulness to confirm that that was the case.
“Where breaches of planning law (such as, in this case the occupation of a house in breach of a condition, or the erection of a building without planning permission) take place, a Council can take enforcement action to rectify the breach e.g. to require compliance with the condition or to require the building to be demolished. However, where such a breach has continued for a specified period without enforcement action being taken, a certificate of lawfulness can be applied for to certify that the Council is unable to take such action such that the breach has become ‘immune’ from enforcement. For operational development (e.g. the construction of a building without permission) and the change of use of a building to a dwelling, the breach must continue for 4 years before it becomes immune. Where there has been any other change of use, or where there has been a breach of a condition, the breach must continue for 10 years for it to become immune.
“In the Powys case, the Council was satisfied, on the basis of the evidence submitted by the applicants, that the condition had been breached for in excess of 10 years and had no choice but to grant the certificate. The benefit of the certificate to the applicants is that it confirms that the Council is unable to take enforcement action against them for breaching the condition.
“As was confirmed at the recent Planning Committee meeting, the Council does not have a dedicated enforcement officer to deal with breaches of planning control. As such, breaches like this one are likely to go unnoticed because compliance with these conditions is not being monitored. It also means that other breaches might also go unnoticed or, even if the Council does receive a complaint about a potential breach, it might not be investigated, leaving the door open for certificates of lawfulness to be granted once the breach has become immune.
“However, if the Council does have the manpower to investigate a potential breach, it can serve an enforcement notice requiring potentially extensive and expensive works to be carried out to undo the breach. There is a right of appeal against enforcement notices and an appeal can be lodged on various grounds, including that the Council is out of time to act because the breach has become immune, or that retrospective planning permission should be granted.
“FBC Manby Bowdler’s Planning Team can assist with all planning queries, including issues relating to lawfulness and enforcement, and can advise on the type and amount of evidence which is required to demonstrate that a breach has become immune. We also deal with appeals against enforcement notices (including listed building enforcement notices), as well as negotiating with Councils in relation to suspected breaches, and what can be done to remedy them.”
To find out more please contact Mark Turner on 01952 208412 or email M.Turner@fbcmb.co.uk.