Planning & the Environment

Localism Act: changes to enforcement and TPO powers

A further raft of changes to the planning regime came into force on 6 April, a number of which could have important effects for anyone involved in property transactions, faced with enforcement action or affected by the tree preservation order (TPO) regime. Important changes were also introduced at the same time in respect of a local authority’s enforcement powers against advertisements, fly posters and graffiti. This Lawbite summarises the changes made.

Changes to enforcement

Retrospective planning permission

  • A local planning authority (LPA) can now decline to determine an application for retrospective planning permission submitted after an enforcement notice has been issued for any part of the development covered by the retrospective application.
  • Ground (a) of an enforcement appeal – that planning permission ought to beranted – is no longer available if a planning application for the same development has been made but has not yet been determined.
  • Planning permission can no longer be granted following an enforcement appeal unless ground (a) is specifically referred to in the notice of appeal. This means that the only way to safeguard the possibility of planning permission being granted if an enforcement notice would otherwise be upheld is to push PINS to hold a conjoined inquiry. This is not always straightforward, given the strict inquiry timetables that now apply.

Concealed breaches

  • Where there has been deliberate concealment of a breach of planning control, the LPA may apply to the Magistrates’ Court for a planning enforcement order (PEO).
  • Where a PEO is granted, the LPA will have will have 1 year and 22 days to serve an enforcement notice, beginning on the day that the order is granted, irrespective of how long ago the breach first occurred.
  • The 4 year and 10 year periods for immunity will not apply in cases of concealed breach.
  • An application for a PEO must be made within 6 months of the LPA becoming aware of the breach sufficient to justify enforcement action being taken.
  • A Magistrates’ Court may only make a PEO if it is satisfied that the breach has been deliberately concealed. There is no definition of what deliberate concealment means in practice.
  • Subsequent purchasers of property need to be alert to the possibility of finding themselves faced with a PEO for a concealed breach of which they were unaware. Purchasers would be well advised to include a question on pre-contract enquiries seeking confirmation that there have been no deliberately concealed breaches and assurance in the contract that this is the case.

Prosecution

  • Where the LPA is required to serve enforcement notices on someone against whom it does not intend to take action (e.g. a landowner where a tenant is in breach), it may now serve a letter stating that it does not intend to take action against that person or in respect only of certain of the matters specified in the enforcement notice. Such assurance may also be withdrawn by letter.
  • The maximum fine if found guilty of a breach of condition notice has been increased to £2,500.

Changes to Tree Preservation Orders

The Town and Country Planning (Tree Preservation)(England) Regulations 2012, which consolidate the previous 1999 Regulations and subsequent amendments, together with changes introduced by the Planning Act 2008 and the Localism Act 2011, all took effect on 6 April. The combined effect of these changes is as follows:

  • Many of the provisions in sections 198 – 205 of the Town and Country Planning Act 1990 relating to the making of TPOs have been replaced by the 2012 Regulations.
  • All TPOs must now be made in the standard form as set out in the 2012 Regulations.
  • Only those people with trees on their land subject to a TPO need be notified. The requirement to serve a copy of the TPO on adjoining owners has been removed.
  • All TPOs will take provisional effect for 6 months. They must be confirmed by the LPA within 6 months of being made.
  • The compensation provisions have been simplified; the same compensation framework will now apply to all TPOs.
  • Consent to carry out works will now last for 2 years.
  • Consent is still required for work to trees in conservation areas not covered by a specific TPO, unless the work was carried out between 6 weeks and 2 years after giving the LPA notice of the intended works.
  • There is no longer an exemption from the need for LPA consent for works to trees that are dying. That exemption now applies only to trees that are dead or pose an immediate risk of danger.
  • 5 days prior notice must be given of work to dead trees unless they pose an immediate risk of danger.
  • An LPA now has six months from when it first discovered a contravention of a TPO to issue prosecution proceedings provided that the offence was not committed more than 3 years before.

Changes to advertisements

  • An LPA may now remove structures used to display advertisements following the service of a removal notice. It may also recover the costs of removal from the landowner.
  • An LPA may take action against the persistent fly-posting of structures or plant following the service of an action notice and recover the costs from the landowner.
  • An LPA has the power to remove graffiti and other signs, other than advertisements, which are offensive or detrimental to the amenity of an area. Removal may be in response to a request from an owner or occupier.
  • A prosecution may now be brought within 6 months of discovery of the contravention, provided that the offence did not occur more than 3 years before.

The above is only a summary of the changes and is not intended to be a comprehensive guide to what can be a complex area of law. If you are faced with potential enforcement action or have questions relating to the effect of TPOs, you should seek legal advice at an early stage as delays or failure to take action at the appropriate stage can prove very costly indeed.