Enforcement action advice

[Newboy]

Brief background:

1) Conservatory built without planning permission (PD rights removed)
2) Build completed in summer 2010
3) July 2011, Local authority writes regarding alleged breach giving three options (submit evidence that PP has been obtained or is not required/Remove the build/Apply for PP)
4) Various letters between solicitors and local authority culminating in all householder arguments being dismissed by local authority.
5) Dec 2011 Letter from local authority to solicitor advising that Planning App would be very unlikely to be passed and giving a deadline of mid. Dec 2011 to "rectify the situation" or further action would be considered.

Since that date the property owner has received no communication from local authority.

Can any enforcement action still be taken?

 

[tony1851]

As the build was completed more than four years ago, enforcement action by the council is now time-barred.
This applies even if PD rights were removed by a previous permission.

 

[Newboy]

As the build was completed more than four years ago, enforcement action by the council is now time-barred.
This applies even if PD rights were removed by a previous permission.

Thanks for that.

My only query is that as, by starting enforcement action (Local authority letter about possible breach) would this be regarded as starting enforcement action?

I guess my question is - as no action has been taken since threatening to take action (!) in Dec 2011 is there a limit on no action being taken?

Appreciate your assistance.

 

[tony1851]

No, technically they did not start enforcement action - they simply warned that was what they might do if the owner did not rectify the situation. Councils are supposed to warn people of suspected breaches of planning control before taking legal action. An actual enforcement notice is a formal, legal document.

 

[Newboy]

Many thanks

 

[^woody^]

As the build was completed more than four years ago, enforcement action by the council is now time-barred.
This applies even if PD rights were removed by a previous permission.

That's not correct.

The council have issued a rectification letter and as such they know about the breach and so the time limits don't apply.

The limits only apply if the council did not know about it and did nothing at all within four years - and not just enforcement.

 

[Newboy]

The council have issued a rectification letter and as such they know about the breach and so the time limits don't apply.

That was my concern!

Is there any expiration date / period of time in which action must be taken - 7 years with no action so far?

 

[oldbutnotdead]

Think you might have to splash £100 on a proper legal opinion. Myself I'd argue that they're out of time. The development is not hidden, the council have said they don't like it but critically have not commenced formal enforcement proceedings within the 4 years.
The way you've worded the post implies that you are looking to buy the place- if so then get a proper legal opinion or put in an offer assuming that the conservatory isn't there and will never be permitted. If it is yours then wait for the council to do something- sounds as if they've forgotten about it to be honest (people leave, die, move jobs) and the longer they forget about it the stronger the case becomes for the property owner.

 

[tony1851]

That's not correct.

The council have issued a rectification letter and as such they know about the breach and so the time limits don't apply.

The limits only apply if the council did not know about it and did nothing at all within four years - and not just enforcement.

A rectification letter is not the same as an enforcement notice, and the council is now well out of time for taking formal action.
All the council has done is to advise the owner that they believe there has been a breach, and suggested steps to correct that alleged breach.
An enforcement notice is a legal document which has to set out certain provisions, including for example, an express statement of the owners' right of appeal. If your contention was correct, it would mean that a LPA could send such a letter alleging all sorts of things without giving the owner any chance of appeal, so that the property was permanently saddled with the threat of action hanging over any potential owner.

The OP should look up the address on the planning register; if any enforcement action is process, it will be marked on the register. My guess is that there will be no such entry.

The time for formal action on the part of the council has well-passed. The council do of course know about the alleged breach, but have since done nothing about it
so it is now time-barred.

 

[^woody^]

In addition, it could well be that this is a breach of condition or unauthorised use, which would mean the 10 year limit applies.

 

[tony1851]

In addition, it could well be that this is a breach of condition or unauthorised use, which would mean the 10 year limit applies.

There is no distinction in s 172 between a 'normal' breach, and breach of a withdrawal of pd rights in a previous permission; it's the four-year rule that applies.

 

[^woody^]

There is no distinction in s 172 between a 'normal' breach, and breach of a withdrawal of pd rights in a previous permission; it's the four-year rule that applies.

The Notice contains the reasons.
But it's never that straightforward as to what the breach may be until the Notice is issued and the council states it's case.

If say the original permission had a condition preventing any additional extension without express planning permission first, whether that's via removal of PD rights or a standard condition, then it's a breach of condition first and foremost.

 

[Newboy]

The Notice contains the reasons.
But it's never that straightforward as to what the breach may be until the Notice is issued and the council states it's case.

Seems a little bizarre that a letter can be sent with no specific reason, no further action taken but unlimited time is available for enforcement?

Still, I suppose that where lawyers make their money!

 

[tony1851]

The letter was not the commencement of enforcement proceedings; as a general rule, authorities are always encouraged to try to deal with problems informally at first, rather than jumping straight into enforcement action.
The letter merely advised the owner that, in the councils' opinion, there was a problem, and suggesting to him several courses of action.
An LPA cannot just send a letter, and then sit back and wait for 5, 10, 20, 50 years at its leisure before deciding to take formal action.

 

[lt8480]

Breach of condition for a house should still be 4 years.

The LPA also only have to recognise its occurrence for the period to stop, I don't believe there is a fixed rule in the form that must take (e.g. it doesn't have to be in the form on actual enforcement action).

Of course if they leave it a long time without enforcement then they may somewhat be accepting its acceptability.

https://assets.publishing.service.g.../uploads/attachment_data/file/7709/319295.pdf

4.7 Section 171B(3) provides that no enforcement action can be taken against (among other cases) a breach of a planning condition after the end of the period of ten years from the date on which the breach first occurred. In effect, there is a ten-year "immunity" rule applicable to the service of a breach of condition notice (except a condition relating to use as a single dwellinghouse where the period of "immunity" is four years). Thus, assuming the breach has been continuous, any breach of condition which first occurred more than ten calendar years before the date on which the LPA formally recognise its occurrence (eg by notifying their opinion that there has been a breach to the owner or occupier of the land) has perpetual immunity. (This assumes that no enforcement action had previously been taken against it.) An explanation of this and other exceptions to the ten-year rule, as it applies to breach of condition notices, is given in paragraphs 2.4 to 2.5 of Annex 2 to this Circular.