Planning Speed Read – Enforcement Powers Improved and Al Fresco Dining made easy
19th April, 2024
The upcoming changes to the enforcement powers of local planning authorities, and the simplification of al fresco dining licensing represent shifts in England's urban and commercial planning landscape that developers should take note of.
Enforcement: Time on our hands
Whilst developers and property owners seek to ensure that planning permissions are complied with, sometimes errors are made and breaches of planning control happen.
At present, local planning authorities in England may take enforcement action in relation to certain breaches of planning control no later than 4 years from the date on which the breach was committed. However, subject to certain exceptions, from 25 April 2024 this time limit will be extended to 10 years in relation to all breaches in England (with different time limits applying in relation to Wales).
These changes were introduced in the Levelling Up & Regeneration Act 2023 (“LURA”), but are only now taking effect following enabling regulations being laid before Parliament earlier this month.
This change appears to increase the power of local planning authorities to take enforcement action against developers and landowners, and could potentially prove to be costly to a developer even after they have parted with their interest in a site if appropriate indemnities and warranties are given to an incoming purchaser.
The transitional arrangements in the enabling regulations set out the circumstances in which the new standardised 10 year time limit could apply retrospectively (in place of the circumstances in which the 4 time limit would otherwise apply). This is something on which advice would need to be provided on a case by case basis.
There will also be extensions to the duration of temporary stop notices from 28 to 56 days, and local planning authorities will be granted the power to issue “enforcement warning notices” which are intended to prompt developers to apply for planning permission to regularise works or development that would otherwise be in breach of planning controls.
Although the new rules appear to make the circumstances for enforcement a little more clearer and consistent in England, the time limits in which enforcement proceedings may be brought are still rather nuanced and subject to a number of qualifications. A scheme where there is some doubt or uncertainty in relation to the prospect of future enforcement action could benefit from some quick tailored advice outlining the level of risk and the circumstances in which future enforcement could be ruled out altogether.
Pavement Licences
The Department for Levelling Up, Housing and Communities (“DLUHC”) published new guidance on pavement licences earlier this month.
During the COVID-19 pandemic, the Business and Planning Act 2020 (“2020 Act”) introduced these all-new licences, which offered a streamlined process to permit restaurants, cafes and other food & drink-serving premises to construct and operate outdoor dining areas in an effort to encourage the public to eat out during an economically challenging time. LURA made these changes permanent and also ensured that fees for initial applications and renewals are capped throughout England.
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Historically, individual authorities had their own processes and requirements for granting pavement licences and additional planning permission was often required to enable furniture to placed in the highway to create outdoor seating spaces. The 2020 Act standardised the requirements and process for applying for a granting pavement licence across England.
Planning permission will be deemed to have been granted for the use once a licence has been granted (section 7(2) of the 2020 Act). That said, anything that would constitute operational development – for example, constructing a temporary decking area or platform, or installing screening to weatherproof or enclose the seating area – will still require planning permission from the relevant authority. For ease of mind, businesses could apply for a Certificate of Lawful Existing Use or Development to provide certainty that planning permission is not required.
Compulsory Procedure Changes
There have been a number of recent amendments to the CPO regime.
DLUHC has announced that a new register of Compulsory Purchase Order decisions will be published and updated quarterly. The Chief Planner commented in the most recent newsletter to planners:
“The intention behind publishing the register is to increase transparency around how decisions are taken, and to improve knowledge and awareness of the purposes for which compulsory purchase powers may be used…This is the first iteration of the register and work is already underway on the next iteration which will include copies of the decisions.”
Having ready access to Inspectors’ decisions will significantly assist all those promoting and advising on CPOs and is to be welcomed.
There have also been some changes to the regulations governing Compulsory Purchase Orders. Two sets of regulations come into force on 30 April 2024 (The Compulsory Purchase of Land (Vesting Declarations and Land Compensation Development Order) (England) (Amendment) Regulations 2024 (“Vesting Regulations”) and The Compulsory Purchase of Land (Prescribed Forms) (Ministers) (Amendment) Regulations 2024 (“Forms Regulations”)) which update some of the forms and notices that are to be used by authorities in the process for making compulsory purchase orders.
This is in addition to a number of CPO related provisions contained within the Levelling Up and Regeneration Act 2023 being brought into force last month and this month, including section 183 which inserts a new section 13BA into the Acquisition of Land Act 1981 to allow conditional confirmation of CPOs.
While bringing conditional confirmation a step closer, further regulations are required before the ability to conditionally confirm a CPO is fully brought into force and it remains to be seen whether these will in fact come forward. While CPOs do often stall pending confirmation of other aspects of the scheme (for example planning or funding), the current regime ensures that by the time an order is made there is certainty that the scheme can come forward; conditional confirmation will remove that certainty and potentially add an extra layer of complexity to what is already a complex process.
Notification of Commencement of the Call for Sites
North Yorkshire Council has started the ‘call for sites’ process. At this stage there is an opportunity for land owners, site promoters, developers or other interested parties to put sites forward for consideration in the new local plan to meet the future needs of the area. Details are available at this link. If you would like to discuss this with an expert please contact Andrew Moss on 0330 137 3507.
Get in touch
For more information about the matters raised in this week’s planning speed read contact Matthew Hills, or another of our expert Planning Lawyers
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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