The ‘Levelling Up and Regeneration Act 2023’ introduces some wide-ranging changes to the planning and enforcement regime. These come into effect on 26 December 2023.
Temporary Stop Notices (TSNs) for Listed Buildings – This change gives the LPA power to serve a TSN in relation to unauthorised works to a listed building. If the works do not have listed building consent (LBC) or that they breach the conditions attached to a LBC. The Listed Building Temporary Stop Notice (“LBTSN”) can be in force for up to 56 days.
Development Commencement Notices : This applies where a planning permission has been granted for the development of any land in England. Before the development has begun, the person proposing to carry it out must give notice (a ‘commencement notice’) to the LPA, specifying when they propose to commence the work. Once a person has given the LPA a commencement notice, they may vary the date of the commencement of development and must do so if the development is not commenced on the date previously given. Where it appears to the LPA that a person has failed to comply with the requirements set out above, they may serve a notice on any relevant person, requiring the relevant information to be submitted to the LPA.
If a notice is served by the LPA, requiring the information to be provided to it, and the relevant person fails to give that information within 21 days, they shall be guilty of an offence.
This means that the commencement of developments should be recorded formally. The failure to provide the LPA with the information requested introduces an offence.
Completion notices. If the development commenced within the 3 years as required by a planning condition but has not been completed, the LPA may serve a Completion Notice. If the LPA believe the development will not be completed within a reasonable timescale that they may serve such a notice which in effect withdraws the planning permission.
It is possible for the recipient to appeal against such a notice to the Inspectorate on the grounds of
(a) that the appellant considers that the development will be completed within a reasonable period;
(b) that the completion notice deadline is an unreasonable one and;
(c) that the notice was not served on the persons on whom it was required to be served
So, the effect of a completion notice is that the planning permission to which the notice related becomes invalid at the completion notice deadline.
Condition requiring development progress reports – Planning permission for relevant residential developments will be granted subject to a condition requiring a development progress report to be provided to the local planning authority.
The report will need to set out the progress which has been made towards completing the dwellings, the progress which is predicted to be made towards completing the dwellings over each subsequent reporting period up to and including the last reporting period and any other information prescribed by The Secretary of State.
The reporting periods are as follows:
First reporting period: begins at a prescribed time or event during which the development has begun for a period of 12 months.
Next reporting period: begins immediately after the first reporting period has ended for a period of 12 months.
Last reporting period: a period ending with the day on which the development is completed.
Time limits for enforcement. The 4-year rule for built development and changes of use to residential will go – it’s all now 10 years. (See more on this below).
Temporary Stop Notices. Currently their duration (effective period) is limited to 28 days. Now it is 56 days – although the LPA has discretion not to impose the full 56 day limit.
Enforcement Warning Notice – LPA can issue such a notice if it appears to them that there has been a breach of planning control and that there is a reasonable prospect that, if an application is made, permission would be granted.
The notice must state that unless a planning application is submitted for the development within a specified period, further enforcement action may be taken.
On the face of it this may seem a pointless exercise, however, what it does do is to ‘stop the clock’ on the time period for immunity from enforcement. For example, say a breach of planning control is suspected with an unauthorised use of land or building that’s been going on for 3 years – there is no ‘demonstrable harm’ as such – but the Council can serve a EWN which effectively prevents the use / building becoming lawful due to the passage of time (i.e. the LPA doing nothing for the next 7 years). I can see this being used very frequently by LPA’s to ‘protect’ their discretion and allow them to re-visit and possibly take a different view at some future point.
It may also force the owner of a perfectly acceptable use or building to apply for planning permission – that of course might allow the LPA to impose restrictive conditions over and above the current use.
Appeals against enforcement notices. The legislation now removes the ability to appeal on ground (a) of an enforcement notice appeal (ground (a) allows you to effectively ask the Inspector to grant planning permission for the unauthorised use or building) if planning permission has already been refused for the development and that refusal appeal dismissed. (However, for this to apply the enforcement notice must have been issued within 2 years of the appeal decision). This is to stop the applicant just stringing out the enforcement process yet further and giving them more time for the breach to remain.
Penalties for non-compliance – S215 Notices (untidy land or buildings) and Breach of Condition Notices increased.
Alan Davies (Associate Director) stated ‘surprisingly there has been little comment in the planning press regarding these changes – the 4 to 10 year change is fundamental and wide reaching. The additional powers given to LPAs will add an extra layer of burden upon them, and there is always pressure from objectors and the public to take some form of action against developments they don’t like – at a time when they (Councils) are struggling to deal with current workload levels. Applicants will now be serving (a) commencement notices, (b) CIL notices and (c) Building Regulations start notices, then if required by a planning condition on the approval (d) regular update notices as works progress!
