The end of the four year rule: Incoming changes to planning enforcement from 25 April 2024

The Levelling-up and Regeneration Act 2023 (“LURA 2023”) became law on 26 October 2023. The Act is expected to have a significant impact on the planning system. However, its provisions are being brought into force in a piecemeal fashion as many of the changes require detail which is to be contained within secondary legislation.

The Planning Act 2008 (Commencement No. 8) and Levelling-up and Regeneration Act 2023 (Commencement No. 4 and Transitional Provisions) Regulations 2024 (SI 2024/452) will bring some important provisions into force on 25^th April 2024 .

Time Limits

One of the key changes is to the immunity period in relation to enforcement action. Currently, there is a four-year time limit on Local Planning Authorities (LPAs) taking enforcement action against unauthorised development consisting of building, engineering, mining or other operations (beginning with the date on which the works were substantially completed).

There is also currently a four year time limit on LPAs taking enforcement action against unauthorised development which constitutes a change of use of any building to use as a single dwelling.

Section 115 of LURA 2023 amends s.171B of the Town and Country Planning Act 1990 (TCPA 1990) to extend the time period in which English LPAs can take enforcement action against those types of unauthorised development outlined above, from four years to ten years.  This effectively means that all breaches of planning control would have a period of ten years after which the LPA would not be able to take enforcement action.

Please note that these changes only apply to England and that the time limits for Wales remain unchanged.

These are substantial changes as they more than double the existing time periods for enforcement.  As a result, those applying for a lawful development certificate in the future would need to provide evidence spanning 10 years. These changes will also have consequences for parties undertaking due diligence in transactions.

These commencement regulations contain an important transitional provision – Regulation 5 provides that the amendments (the 10 year limit) do not apply if the operations were substantially completed or the breach occurred before the day on which the relevant part of the commencement regulations comes into force i.e. 24^th April 2024. Unauthorised development occurring on this date or earlier, therefore, will be protected under the current four year rule.

Other Key Changes

These commencement regulations also bring into force the following on 25^th April 2024:

• Section 117 LURA 2023 which provides LPAs in England with a new power to issue an enforcement warning notice where they become aware of unauthorised development that has a reasonable prospect of being acceptable in planning terms. The enforcement warning notice requests the submission of a retrospective planning application within a specified period.

 If an application is not received within the specified period, the LPA can take further enforcement action.

• An increase in maximum fines for non-compliance with breach of condition notices and section 215 notices. 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 (currently £2,500). There will be no limit on the fine that can be imposed by the court for failing to comply with a breach of condition notice (the current maximum fine is £2,500 for breach of condition notices in England).
• Where there is a suspected planning breach, LPAs have the power to issue temporary stop notices to prevent any further development taking place, allowing them to investigate the breach and decide whether further enforcement action is required. Currently, LPAs can pause development or halt the breach for 28 days. This period has now been increased to 56 days.
• A “ground (a) appeal” under s.174(2) TCPA 1990 effectively seeks retrospective planning permission for the development which is the subject of enforcement. The circumstances in which a ground (a) appeal may be lodged has been restricted.
• Section 103 LURA 2023 will give LPAs the power to issue temporary stop notices in respect of unauthorised works carried out to listed buildings in their area if they consider it expedient that the works (or part of them) should be stopped immediately. The temporary stop notice will cease to have effect after 56 days unless a shorter period is specified in the notice.
• The Secretary of State/Planning Inspectorate has been provided with the power to dismiss an appeal against an enforcement notice if it appears that the appellant is causing undue delay (section 119 LURA 2023). The appellant will first receive notice that the appeal will be dismissed unless the appellant takes the specified steps within the period specified.

These are just a few of the measures being put in place in an attempt to provide LPAs with more power to clamp down on breaches of planning control, where they occur.  The impact of the increased strength of the law, in terms of required resources (at all levels) and any genuine economic or environmental savings, will no doubt be assessed in due course.  For now, however, all players must make themselves aware of the changes and be on the front foot in order to protect themselves from any ‘mistaken’ breaches.  For further advice on these changes and any other planning questions, please contact our Planning Team.