Recent amendments to the Town and Country Planning Act 1990, which took effect on 25 April, have extended the enforcement time limit for all breaches of planning control to 10 years in England.
Previously, anyone who carried out an unauthorised operational development was immune from enforcement if the local planning authority failed to enforce within 4 years from practical completion of the works. A 10-year time limit applied to 'other' breaches of planning control, including other changes of use of land and breach of planning conditions.
The issue of contested immunity and the validity of enforcement notices is often litigated in the context of applications (and appeals) for certificates of lawful development. The case of Caldwell v Secretary of State for Levelling up, Housing and Communities [2023] EWHC 2053 (Admin) is a recent example and concerned a dwelling built in the greenbelt without planning permission on land used for agricultural purposes. Quashing an inspector's appeal decision, the court found that the unauthorised dwelling did enjoy immunity from enforcement as operational development by virtue of the 4-year time limit, whereas the residential use of the dwelling did not as it had been in use as such for less than 10 years. The court found that the enforcement notice could require the restoration of land back to agricultural use, but could not extend to the operational development because the dwelling was permitted to remain on the land – albeit it could not lawfully be occupied as such.
Whilst imposing a more onerous immunity rule for operational development the outcome in the Caldwell case helps to illustrate why the new 10 year regime should create a more consistent approach to enforcement where operational development and a material change of use are so closely linked – as in the case of dwellings. Authorities will be able to issue an enforcement notice requiring landowners to both restore the land to its previous use and remove any unauthorised building where they fail to acquire immunity.
Transitional provisions ensure that the new single 10-year time limit will only apply to unauthorised changes of use and operational development that is substantially completed after 24 April 2024.
If you’d like to know more about how Caldwell or the new enforcement rules could affect your project please contact the DACB Planning team.
