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Oliver Bussell

Partner - Sevenoaks and Ashford

20th September 2018

Planning enforcement – strategies for survival

You need to act if you have received a planning enforcement notice

A client recently protested to me about enforcement measures with an impassioned, “it’s my property, I can do what I want!”

I recognise the sentiment – and I feel the same about where I live of course…

But it’s only true subject to several parts of the Town and Country Planning Act 1990 – most practically Part VII which sets out a comprehensive code of enforcement powers: powers to serve a stop notice, a temporary stop notice, an enforcement notice, a breach of condition notice. Some of these have rights of appeal and appear on the local land charges register from that time on. It’s a good idea to be mindful of them because of the trouble they can cause peaceful enjoyment of the home – or a business.

Planning contravention notices (PCNs)

Especially insidious is the ability to serve a “planning contravention notice” (PCN). This is a questionnaire about uses and operations carried out on land. It demands an answer within 21 days on penalty of criminal prosecution and an unlimited fine. A PCN cannot be served without some reasonable cause, but the courts tend to give a fairly wide discretion in what a council might reasonably become interested in. So while you should consider whether to answer or not, the advice is usually to err on the side of caution – the consequences of not replying to a PCN are serious and having an argument in court about the reasonableness of the council serving the notice in the first place is not a great place to find yourself.

I would always advise taking legal advice in responding to a PCN to ensure that you are meeting the duty of openness and thereby reducing the possibility of enforcement and prosecution. Your lawyer may be able to set out a better rationale for the use of the land than you are aware of yourself – whether that is through a planning permission, permitted development rights, or statutory immunity from enforcement.

In any emerging dispute with the local authority I encourage clients to be open with planning officers but also to document what is said – not simply to accept the council’s stance without question. Local authorities act under powers conferred on them by Parliament – they are obliged to act reasonably and proportionately at all times. Having professional representation in replying to a PCN – and in any enforcement proceedings that might follow – can ensure that there is proper scrutiny and fairness in the council’s actions.

If enforcement action of any kind is taken against you, take it seriously and get it reviewed by a professional who will help you assess your situation objectively. That will either defeat the proceedings or else it will help you to navigate your way out of them!

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