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[Piglet]

"Under-enforcement" and deemed planning permission

2.10 Section 173(11), as amended, corresponds substantially to the previous section 173( of the 1990 Act, except that, after full compliance with the requirements of an enforcement notice, the provisions apply to any remaining uses or activities on the land and to any remaining buildings or works. It deals with the situation where "under-enforcement" has occurred, by providing that planning permission shall be treated as having been granted for the development or the activity, as it is in the state resulting from the owner or occupier having complied with the enforcement notice's requirements. As the section applies to all the remaining uses or activities on land once the enforcement notice has been complied with, LPAs should ensure that they identify all the relevant breaches of planning control involving the use of land before they issue an enforcement notice. Where the land is in mixed use, it is important that the notice should allege a change of use to that mixed use, specifying all the component elements in the notice's allegation. The deemed application for planning permission under section 177(5), arising from any appeal against the notice, which the Secretary of State or a Planning Inspector will need to consider, should properly relate to the mixed use in its entirety, not just to those elements of the use which the LPA may have identified as being in breach of planning control and which are covered by the notice's requirements. This is because the planning merits of a particular use of land will not necessarily be the same, where that use is only one of a number of uses taking place, as the planning merits of that use where it is the land's sole use. For example, if the other uses were to cease and the single remaining use were to occupy the entire "planning unit", to the exclusion of the others, that change could well constitute, as a matter of fact and degree, a "material" change of use of the planning unit, to which different
planning considerations might apply (Wipperman v Barking LBC [1965] 17 P&CR 225). Accordingly, if the LPA do not specify all the uses taking place on a planning unit in a mixed use case, the Secretary of State's or an Inspector's appeal decision will correct that notice, to reflect the actual situation on the land as it was when the notice was issued, before dealing with any "deemed planning application" on that basis. In these circumstances, if the LPA have failed to identify any uses of the land which may not already be lawful, and to which planning objections would apply if they were to become lawful, the effect of section 173(11) could be to grant deemed planning permission for those uses if they are specified in the allegation but are not required to cease.

2.11 If it emerges, during an enforcement appeal, that the LPA have inadvertently omitted any component of a mixed use from the allegation in their notice, they and the appellant will be given the opportunity to make representations on the planning merits of the whole mixed use before the Secretary of State or an Inspector corrects the notice as in paragraph 2.10 above. It is normally not possible to expand the requirements of an enforcement notice without causing injustice to the appellant or other "relevant occupiers" as defined in section 174(6). In those circumstances the LPA might wish to withdraw the notice and issue another, rather than have a corrected notice upheld and the provisions of section 173(11) apply to formerly unlawful elements of a mixed use, of which they may have been unaware. (The "second bite" provisions of section 171B( 4 )( of the 1990 Act should ensure that the LPA are still "in time" to issue a further enforcement notice in these circumstances.)

2.12 In cases where the allegation as drafted by the LPA correctly specifies all the elements of a mixed use, LPAs will need to ensure that the requirements of the notice also fully reflect their intentions for the land, once the notice is complied with and section 17 3( 11) comes into operation.

2.13 Section 173(11) does not specify any procedure for this "deemed grant of planning permission". The Department suggests that the LPA need only notify the recipient of a copy of an enforcement notice that permission is deemed to have been granted at the time when, in the LPA's view, the requirements of the enforcement notice have been fully complied with. The deemed grant of planning permission should also be entered in the enforcement and stop notice register.