Enforcement can take a number of different forms. As a general rule it is nearly always better to face up to it and deal with it rather than to put your head in the sand and let the Local Authority do their worst.
Enforcement often comes in a number of stages :-
1. The Threat of Enforcement
You may be told to stop whatever it is you are doing or to reinstate the land to a particular use which was in place previously under the threat of Enforcement Action if you do not comply.
At this stage we can advise you whether Enforcement Action against you would succeed and generally as to what course of action you should adopt to either head off the threat altogether or alternatively to let the proceedings be taken on the basis that you can appeal them and stand a good chance of success.
2. The issue of an Enforcement Notice
It is absolutely essential that this is dealt with promptly because if an appeal is not lodged within a stipulated time of service of the Notice, normally 28 days, the Notice takes effect and becomes enforceable against you and the usual rights of appeal are from then on denied to you.
Failure to comply with the Notice once it has taken effect is a criminal offence so this is a position you just do not want to find yourself in.
3. Can I appeal an Enforcement Notice?
At present there are up to seven grounds of appeal that you can use against a Notice served upon you.
As a result of our experience of dealing with planning enforcement over many years we are very well placed to advise you as to exactly what you should be doing.
You might for instance be advised to appeal under what is called ground (a) where you can allege that you should be granted planning permission for whatever works or change of use you have carried out.
Alternatively, or sometimes in addition, we might suggest after careful examination of the history of the matter that you should appeal on the basis that it is too late for the Local Authority to take action against you because sufficient time has elapsed since the breach to render your actions immune from enforcement. There are statutory time limits applicable to the acquisition of these rights which in general divide into four years uninterrupted use to acquire a residential right of immunity and ten years uninterrupted use in any other case. The case law in respect of these rights is very involved and technical in nature. The burden of proof is very much with you and both the Local Authority and the Inspector on any appeal will look hard and critically at the evidence that is put forward. The way the case is presented and the way the evidence is accumulated are always most important in matters of this kind.
4. Should you ever take the initiative?
If you have been carrying out the activities referred to without planning permission but over the requisite period of time then it would be prudent to take the initiative and to apply for a Certificate of Lawful Use. This is not an application for Planning Permission but has the same effect as a Planning Consent if it is successful.
It would be wise to make the application as soon as the right has accrued. The present Government has expressed general uneasiness with the present planning system insofar as it permits applications for retrospective consent and with regard to the acquisition of rights over time it has indicated that it is looking into this with a view to altering the rules or extinguishing the present rights. No legislation is likely to be retrospective but it is obviously prudent to take the initiative and make any applications that are open to you whilst the law stands as it does at present.
We can help you to make the right decisions in any of the circumstances outlined above and any other circumstances that may arise in connection with threatened or actual enforcement proceedings.
Call Karen in our Planning Department on 0844 043 0538 with a brief outline of the planning matter you want advice upon and she will arrange for the most appropriate person in our department to contact you.
