Changes coming to planning enforcement

Yee Cheung, senior planner at Boyer in Colchester, explains some little-known changes to planning legislation which come into force very soon.

Among the lesser known details of the Levelling Up and Regeneration Act 2023 are the changes which will impact directly on planning enforcement. Chapter 5 (Section 115-121) of the Act amends Enforcement of Planning Controls, specifically the time limits for enforcement, commonly known as ‘the four-year rule’ or ‘the 10-year rule’.

Time limits for enforcement will be most familiar to people in the context of substantial changes to buildings – those which would have required planning consent – which have been hidden from the local planning authority for the four-year time period, on the basis that the building would automatically gain planning consent.

Probably the most famous is the farmer, who, in 2002 built a mock Tudor castle and hid it behind giant bales of straw for several years to avoid an (inevitably unsuccessful) planning application.

He hoped to sidestep the planning system by applying for a Certificate of Lawfulness, which is sometimes applicable if no one objects to a newly-built property up to four years after construction. But despite him going to great lengths to ensure that the home remained undiscovered, ultimately the High Court forced him to demolish the luxury four-bedroom property (complete with ramparts, turrets and a cannon) in 2007.

The Four-Year Rule: the status quo

Section 171B of the Town and Country Planning Act 1990 (TCPA) currently states: “No enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed.”

This provides property owners and landowners with immunity from planning enforcement action for development that has been carried out without planning permission. If four years have passed since the breach of planning control occurred, the council can no longer take enforcement action to require the property owners and landowners to remove or alter the development.

National Planning Practice Guidance also advises that development becomes immune from enforcement if no action is taken:

Within four years of substantial completion for a breach of planning control consisting of operational development
Within four years of an unauthorised change of use to a single dwellinghouse
Within 10 years of any other breach of planning control (essentially other changes of use)

The four-year rule does not apply to cases where there has been a deliberate concealment of a development – which is why the High Court eventually ordered the farmer to demolish his castle.

The four-year rule is only applicable to certain breaches of planning control. Breaches that do not fall under the four-year rule include change of use or the non-compliance of a planning condition. In this case, a 10-year rule applies.

Following the four or 10-year period, to regularise the situation and ensure a development is lawful, a Certificate of Lawful Development application can be made to the council to demonstrate that the existing development or use has been in situ or in operation for four (or 10) years. The onus is on the applicant to prove that the development or use is lawful on the balance of probabilities.

The 10-Year Rule: the future

This is set to change, as Section 115 of The Levelling Up and Regeneration Act 2023 will amend Section 171B of the TCPA to delete the words ‘four years’ and to substitute with ‘10 years’.

This is not currently in force but there are rumours that the enforcement changes will come into effect in April. Once the legislation is implemented, the level of evidence to demonstrate the lawfulness of a development will be 10 years.

And so it becomes very important that any development which would have had to meet the four-year timeline is regularised before the amendment takes place – and farmers wishing to hide castles must do so for a further six years.

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