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Most people carrying out a self build project will never hear from their local planning enforcement team. They will have obtained planning permission before starting the work, made sure that they have discharged any planning conditions and built out their extension or new property exactly as shown on the approved plans. If they tweak the design, they run it past the planners first. They imagine that it is mostly dodgy developers who get into trouble.
But it is a mistake to be complacent, as it is surprisingly easy to run into enforcement problems without intending to break the rules – and the consequences can be very serious. As a planning consultant, I represent dozens of clients every year who face the prospect of demolishing part or all of their home. It can be a very costly experience.
This is my guide to planning enforcement: how it works, why you can sometimes encounter difficulties despite your best intentions and what to do if facing investigation.
Since we require people to seek planning permission before developing land or property, it makes sense that there is some kind of system in place to ensure the regulations are followed. Local planning authorities have planning enforcement officers who investigate alleged breaches of planning control – situations where a development has been carried out without planning permission or conditions have not been complied with.
They generally respond to complaints from neighbours (there is no system by which enforcement officers pro-actively check that every development is carried out correctly) and maintaining good relations with your neighbours is therefore the first step in avoiding an enforcement investigation on your project!
As part of an investigation, an enforcement officer will visit the site. They can also serve a planning contravention notice (PCN), which is a legal document that asks for information on what works have been carried out (it is a criminal offence to lie on a PCN or to fail to respond).
If the officer concludes there has been a breach, they must decide whether it is worthwhile for the council to do anything about it. Enforcement powers are discretionary – the council can decide that the breach is not serious enough for any further action to take place. If the planning officer feels that planning permission would be granted for the particular development, they will invite a retrospective planning application.
However, if they feel that the breach is serious enough and that consent would not be granted, they can serve an enforcement notice. This will generally require the developer to reverse the unauthorised works – this can mean demolishing a new house or recent extensions.
It is important to note that, while you may encounter them in an emotive situation, planning enforcement officers are here to help you. They will respond to constructive communication. Photo: Sai Thaw Kyar / SHUTTERSTOCK
Of course, some people knowingly breach planning rules in the hope that they will get away with it. But many people who get caught up in enforcement investigations had no idea they’d done anything wrong. There are several steps you can take to avoid finding yourself in this situation:
It is surprisingly common for planning permission to be granted for developments that cannot lawfully be built. Say, for example, that your plans show a 10m-wide house on a 12m-wide plot with a 1m gap to each side boundary. Later, you discover that the plot has been measured incorrectly and it’s only 11m wide, so it is impossible to build a 10m-wide house with half a metre to each side.
If you go ahead regardless, with only a half a metre gap to each side, you are obviously at risk of enforcement action. You might wonder how anyone would take such a risk, but when you have a contract with builders who have already pitched up on site, it is difficult to put a project on hold while a new planning application is submitted. Some people end up taking the risky decision to proceed.
As an aside, this is something you should be aware of if you are buying a plot of land that already has planning permission – it will not be a valid consent if the plans are inaccurate. So make sure to do your due diligence before you buy. The solution is to invest in a full measured survey, carried out by a specialist surveyor to provide you with precise measurements of the plot. This survey will ensure that your architect designs a project that can actually be built without breaching your planning consent.
CLOSER LOOK How to handle an enforcement investigationBe open & honestEnforcement officers are there to help you. They respond best to people who cooperate with them. Remember that their powers are discretionary – they do not have to take any action – so try and build some rapport. Above all, don’t try and mislead them and don’t get angry! Take professional adviceSpeak to a planning consultant with experience of planning enforcement. Planning is a complicated area, and a specialist will be able to establish the nature of the breach, negotiate with the council, submit a retrospective planning application and appeal an enforcement notice. Work out what went wrongI am sometimes approached by clients who don’t fully understand the council’s concerns. If it is alleged that your new dormer is bigger than shown on your plans, for example, hire a specialist to measure it so you know where you stand. Appeal your enforcement noticeThis approach is usually the best option. If you don’t appeal, it takes effect and you are legally required to meet the enforcement notice’s requirements. Always seek professional help with the appeal – don’t attempt to tackle it solo. |
The planning system is inflexible. It expects that when you are granted planning permission you will build out what is shown in the plans in every detail. Life is much messier than that, of course, and it is common to want to make changes as you go along. The better quality your initial plans, the less likely changes with be needed. But a degree of self-discipline is also required – plan your development once and stick with it!
This also requires discipline with your builders. They may have lots of helpful suggestions for how your build’s proposal could be improved (including corners that might be cut and self build costs saved). Small changes can add up to an enforcement problem, so remember what you actually have permission for and stick with it. If you do make changes to your scheme, make sure to amend your consent (through an application for a non-material amendment or minor material amendment).
Almost all planning permissions are subject to a series of planning conditions listed on the decision notice. There is a temptation to think that they don’t matter very much, but councils take them very seriously.
Take special care with pre-commencement conditions, which require you to take a specific action – such as getting approval for a landscaping scheme – before starting work. If you don’t discharge them before starting your project, you have not lawfully implemented your permission. After three years it will expire, and you may not have consent for the house you have just built.
Permitted development (PD) rights allow you to carry out certain types of development without needing planning permission, but they are subject to a whole host of conditions and limitations. A lot of my enforcement casework is for homeowners who have built extensions believing them to be permitted development, only to later discover that they are not.
Permitted development rights are subject to size limits and other constraints. Previous extensions to a house may mean that new extensions are not possible. Some houses lose their PD rights through a planning condition on an earlier grant of planning permission. In some areas, all houses lose their rights because the council has introduced what is known as an Article 4 direction.
Rights are limited in conservation areas and other sensitive locations. Before starting work, always apply a lawful development certificate to confirm that your proposals comply with local permitted development rules.
A warning and reminder to self builders: only finished houses have permitted development rights. If you have planning permission for a two-storey property, for example, you cannot build it and, at the same time, add a loft conversion on the basis that it should fall under permitted development. You would have to complete the new house first, allow a little time to pass, and only then bring your builders back to convert the loft.
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