Key Changes under the Levelling Up and Regeneration Act: Planning Enforcement and Lawful Development Certificates (LDC) Matters

From Thursday 25 April 2024, changes to enforcement and lawful development certificate (LDC) matters come into effect as a result of the Levelling Up and Regeneration Act (LURA). 

The Planning Act 2008 (Commencement No. 8) and Levelling-up and Regeneration Act 2023 (Commencement No. 4 and Transitional Provisions) Regulations 2024 were made on 2 April 2024.

These are the regulations that bring the enforcement package set out in LURA into force, and subject to transitional provisions, will come into force on 25 April 2024.

Further details are here: Enforcement appeals: Key changes under the Levelling Up and Regeneration Act - GOV.UK (www.gov.uk)

The accompanying explanatory note is here: The Planning Act 2008 (Commencement No. 8) and Levelling-up and Regeneration Act 2023 (Commencement No. 4 and Transitional Provisions) Regulations 2024 (legislation.gov.uk)

Below are key elements affecting enforcement and lawful development matters: 

Time limits for taking enforcement action) 

Section 115 of the LURA changes the time limits for taking enforcement action in England by revoking the four-year time limit which applied to operational development and change of use of any building to use as a single dwellinghouse. The time limit for taking enforcement against all breaches of planning control in England will now be ten years. 

‘Second-bite’ provisions and the law related to enforcement orders remain unchanged. 

The ten year limit for bringing enforcement action will not apply where alleged operational development was substantially completed before 25 April 2024, or where the date of an alleged change of use to a single dwellinghouse was before 25 April 2024.  In these circumstances, the four year time limit would remain.

Enforcement Warning Notices (EWA)

Local Planning Authorities can issue EWAs, inviting regularisation applications when it appears that a development has taken place in breach of planning control.

Issuing an EWA will constitute the taking of enforcement action, which is relevant to the ‘second-bite’ provisions.

Restriction on appeals against enforcement notices

Changes to when a ground (a) (an application for retrospective planning permission) will limit circumstances in which an appeal against an enforcement notice can be brought on ground (a).

This will apply in circumstances where an application for planning permission has already been made to regularise the breach 

These amendments do not apply to appeals against enforcement notices that were issued, and have not been withdrawn, before 25 April 2024.

Undue delays in appeals

The Planning Inspectorate will have the power to dismiss appeals against enforcement notices and certificates of lawfulness on the grounds of undue delay by the appellant in progressing the appeal.

If at any time before or during the determination of an appeal against an enforcement notice or LDC appeal, it appears the appellant is responsible for undue delay in the progress of the appeal, the Planning Inspectorate may:

(a) give the appellant notice that the appeal will be dismissed unless the appellant takes, within the period specified in the notice, such steps as are so specified for the expedition of the appeal, and

(b) if the appellant fails to take those steps within that period, dismiss the appeal accordingly.

These changes do not apply to any enforcement appeals or appeals against a refusal to grant a certificate of lawfulness that were made before 25 April 2024. 

The power is in addition to existing powers where the Planning Inspectorate may dismiss an appeal if the appellant fails to submit supporting evidence within the prescribed time.

The Planning Inspectorate also has the power to allow an appeal and quash the enforcement notice if the local planning authority fail to comply with any requirement of the regulations. 

Before exercising these powers, the Planning Inspectorate will notify appeal parties and a final warning will be given. 

Activation of s319A LDC appeals

From 25 April 2024, under Part 2 of the regulations, the Secretary of State gains the authority to determine the procedure for LDC appeals.