Planning Enforcement Changes to take effect from 25 April 2024 - LURA2023

These measures bring the enforcement provisions previously published in LURA2023 into effect, and subject to the transitional provisions, they will come into force on 25 April 2024.

These changes will impact many homeowners and property developers and potentially increase their Community Infrastructure Levy (CIL) liabilities, or perhaps removes one of the angles that has been hugely successful in challenging Local Planning Authorities (LPAs) and their CIL charges, where they had previously ruled an existing use unlawful. Reg.40 and Schedule 1 set out the mathematics for assessing the amount of CIL due against a chargeable development, but too often LPAs are not incorporating the eligible offset of an in-use building.

In fact, we are now seeing a number of LPAs are claiming that ‘offset’ must be applied for – or simply refusing to include it with their calculations as a procedural step to – a treatment somewhat contrary to the Regulations. There must be many CIL payers that simply take the Liability Notice and pay the bill in the expectation that it is correct. Sadly, some of these will be over-paying the CIL due to misguided application of the law by certain LPAs.

In one recent project, we reduced a £95K CIL charge to zero, by establishing that the existing use before the grant of a new permission was in fact lawful (under the four years use with no enforcement) so that the exist gross internal area (GIA) was offset against the proposed area – and as the project was a change of use, the LPA reversed their initial view of unlawful use (denying offset) and accepted the building as in-use and so issued revised CIL Liability Notice to zero.

Enforcement - time limits

From the 25 April 2024 the planning enforcement system changes further to s.115 LURA2023. As with any new legislation that changes long-standing law, there are a number of transitional provisions to be considered and complied with. The four-year time limit for bringing enforcement action against operations (building, engineering, mining or other operations in, on, over or under land) or the change of use of any building to use as a single dwellinghouse will be revoked in England. This aligns residential enforcement with all other cases of breached planning control under a ten year period (s.171B(3) TCPA1990). The rules, as yet remain unchanged in Wales.

Under transitional provisions, these changes will not apply where the operational development was substantially completed before 25 April 2024, or the change of use of any building to use as a single dwellinghouse (s.171B(2) TCPA1990) occurred, before the day on which that section comes into force. There were a number of other transitional provisions concerning temporary stop notices, enforcement notices, undue delays in appeals and penalties for non-compliance but these are more ‘mainstream’ planning matters and so outside of our Property Taxation expertise and specifically our Community Infrastructure Levy advisory services.

Another recent change, under s.111 LURA2023 effective from the 31 March 2024, is the new duty under s.93G (TCPA1990) for owners/developers to issue a commencement notice to the LPA prior to starting work.  At this time it is unclear if the CIL Form 6 Commencement Notice would be sufficient where CIL has been adopted or the form this notice will take in LPAs where CIL has yet to be introduced.  For non-compliance with the commencement notice rules, a person is liable on summary conviction to a fine not exceeding level 3 on the standard scale (£1,000). 

We fear the vast majority of CIL Liability Notice recipients fail to take appropriate or timely advice.  If you have a CIL Liability Notice we strongly recommend the figures be validated and reviewed by a specialist – particularly if it relates to a change of use situation. Please do get in touch.