The legal framework for retrospective planning applications provides an opportunity to regularise unauthorised developments, but it also reinforces the importance of compliance.
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Sometimes development requiring planning permission is carried out in genuine ignorance of planning legislation. You should rest assured that it is not an offence to carry out development without first obtaining any planning permission required for it. Section 73A of the 1990 Act specifically provides that a grant of planning permission can be given for a development that has already taken place. Therefore, where the local planning authority feels that it is likely that a planning permission would be granted, the correct approach is to suggest that a retrospective planning application should be submitted.
The decision maker must approach a retrospective application seeking to legitimise a development that has already taken place in exactly the same way as a ‘normal’ application for proposed development. So, for example, the national and development plan policies current at the time of the application should be applied, rather than those in place when the development was carried out. Obviously, if a development is in existence this can make it much easier to assess its impact, particularly where visual amenity and design considerations are of importance. However, the fact that a development has been carried out is not in itself a material consideration.
What is the 4 and 10 year rule
Time limits for planning enforcement
The time limits for taking enforcement action are set out in section 171B of the Town and Country Planning Act 1990 (see also The Planning Act 2008 (Commencement No. 8) and Levelling-up and Regeneration Act 2023 (Commencement No. 4 and Transitional Provisions) Regulations 2024 for transitional arrangements).
In most cases, development becomes immune from enforcement if no action is taken:
- within 10 years of substantial completion for a breach of planning control consisting of operational development where substantial completion took place on or after 25 April 2024
- within 10 years for an unauthorised change of use to a single dwellinghouse where the change of use took place on or after 25 April 2024
- within 4 years of substantial completion for a breach of planning control consisting of operational development where substantial completion took place before 25 April 2024;
- within 4 years for an unauthorised change of use to a single dwellinghouse where the change of use took place before 25 April 2024
- within 10 years for any other breach of planning control (essentially other changes of use).
However, the time limits set out above do not prevent enforcement action after the relevant dates in certain circumstances. These are:
- where it concerns “further” enforcement action in respect of any breach of planning control within 4 years of previous enforcement action (or purported action) in respect of the same breach. This is known as the “second bite” provision.
- where there has been deliberate concealment of a breach of planning control, local planning authorities may apply for a planning enforcement order to allow them to take action after the time limits in section 171B have expired.
- where a person has deliberately concealed a breach of planning control, the courts have found that in these circumstances, the time limits in section 171B do not engage until the breach has been discovered.
If you think your development is immune from enforcement action due to the timeframes above, you would need to apply for a Certificate of Lawfulness of Existing Use or Development (CLEUD). This application is submitted to the local planning authority to confirm that a development, use of land, or building is lawful and immune from enforcement action because it has met the time limits set out in the Town and Country Planning Act 1990.
I’ve completed development and/or a change of use without planning permission. What are my options?
1. Submit a Retrospective Planning Application
If you believe your development or change of use aligns with local planning policies, you can apply for retrospective planning permission. This allows you to regularise the work after it has been completed.
2. Demonstrate that the Development Is Permitted Development
Some types of development and changes of use fall under permitted development rights (PDRs), meaning they do not require formal planning permission. You can research whether your project qualifies under PDRs.
3. Revert the Change of Use or Remove the Development
If the unauthorised work or use does not comply with planning policies and is unlikely to gain retrospective approval, you can revert it to its original state.
…..what if you don’t comply with an Enforcement Notice?
Failing to comply with an enforcement notice issued by your local planning authority can lead to serious legal and financial consequences. Enforcement notices are legally binding documents that require specific action to remedy a breach of planning control. If you ignore or fail to comply with the requirements of the notice within the specified time frame, you may face the following consequences:
1. Legal Action
- Non-compliance with an enforcement notice is a criminal offence under UK planning law. The local planning authority can initiate legal proceedings in the Magistrates’ Court or, for more serious breaches, in the Crown Court.
- If found guilty, you may face substantial fines. These can be unlimited in the Crown Court, depending on the severity of the breach and the financial benefit you gained from the unauthorised development.
2. Direct Action by the Council
- The local authority has the power to enter the land and carry out the necessary works to ensure compliance with the enforcement notice. This is known as direct action.
- The costs incurred by the council for carrying out these works will be charged to you. If you fail to pay, the council can place a charge on your property, which could affect its future sale.
3. Injunctions
- In some cases, particularly for ongoing or serious breaches, the local authority may apply to the courts for an injunction to prevent further non-compliance.
- Breaching an injunction can result in imprisonment or further financial penalties.
Legal Basis for retrospective planning applications
The legal basis for retrospective planning applications in the UK stems from the Town and Country Planning Act 1990 (TCPA 1990). This legislation provides the framework under which local planning authorities regulate development and address unauthorised works. Retrospective applications allow individuals or organisations to seek formal planning permission for development already carried out without prior consent.
Key Legal Provisions
- Section 73A of the TCPA 1990:
- This section explicitly allows for the submission of a planning application to authorise development that has already been carried out. These are commonly referred to as “retrospective planning applications.”
- The purpose of this provision is to offer a legal pathway to regularise unauthorised development rather than penalising it outright, provided it aligns with local and national planning policies.
- Section 70 of the TCPA 1990:
- When determining a retrospective planning application, the local planning authority has the same powers as it does for a regular planning application. It can:
- Grant permission unconditionally or subject to conditions.
- Refuse permission.
- When determining a retrospective planning application, the local planning authority has the same powers as it does for a regular planning application. It can:
- Section 171B of the TCPA 1990 (Time Limits for Enforcement):
- Retrospective planning applications are often submitted to avoid enforcement action. However, if unauthorised development has existed for a specific period without intervention, it may become lawful due to immunity:
- Four years for unauthorised building works or a single dwellinghouse.
- Ten years for other changes of use or breaches of planning conditions.
- Retrospective planning applications are often submitted to avoid enforcement action. However, if unauthorised development has existed for a specific period without intervention, it may become lawful due to immunity:
- Section 191 (Certificate of Lawfulness of Existing Use or Development):
- In cases where immunity from enforcement applies (e.g., due to the passage of time under Section 171B), individuals may apply for a Certificate of Lawfulness instead of a retrospective application to confirm the lawfulness of the development.
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Retrospective planning applications for changes of use provide an essential avenue for regularising unauthorised developments, but they require careful preparation and consideration. Understanding submission requirements, addressing potential issues, and complying with planning laws are vital to success. While the process can be challenging, proactive engagement with professionals such as RPE and local authorities can significantly enhance the prospects of approval and ensure alignment with the UK’s planning framework.
