PROPERTY JOURNAL

Landlords: be aware on planning permission

The consequences of failing to gain the requisite planning permission make a cautionary tale for landlords

Author: Mark Brassey and Daniel Brayley

12 March 2019

Landlords should take the following suggested actions to ensure they are not vulnerable to enforcement

Landlords should take the following suggested actions to ensure they are not vulnerable to enforcement

You could be vulnerable to enforcement action from your local authority if you purchased a house in the following circumstances.

  • that was converted into flats by the previous owner and you didn't properly check whether that work was with planning consent
  • where you have made any alterations, such as adding a rear or side extension, without the requisite planning permission.

If either of these apply to you, you must act now – before it is too late – to mitigate the risk of a serious financial penalty. A breach of planning control entitles the planning department at the relevant local authority to issue an enforcement notice against you under section 172 of the Town and Country Planning Act 1990.

This will state the work that you are required to undertake – for example, to demolish any authorised extensions or to cease the use of the premises as flats – and the date by which any such work must be completed.

Challenge or ignore?

While it is possible to challenge the validity of the enforcement notice by way of a statutory appeal before it takes effect, if you ignore it or fail to submit an appeal in time then the notice will take effect and you will be required to comply with it by the specified date.

If you do not carry out the works, you will be liable to prosecution in the magistrates' court or crown court by the local authority under section 179(2) of the 1990 Act, and if you plead guilty or are found culpable by the court you could receive an unlimited fine as well as an order to pay the prosecution's costs. More worryingly, the local authority may also be able to exercise the option to apply to the court for a confiscation order under the provisions of the Proceeds of Crime Act 2002.

After an intrusive investigation into your finances to ascertain the benefit of your criminal conduct, and the amount that you can afford to pay – even if this requires you to sell the property – the prosecution is likely to ask the court to make a confiscation order. This will be the sum of the total rental income that you have received at the property during the period of non-compliance with the notice – without deduction for expenses – and, potentially, rental income from any other premises you own where there may be a breach of planning control. Inevitably, confiscation orders routinely eclipse the fine and costs order made against landlords.

We have seen several defence arguments run and fail due to the strict criteria of the 1990 Act. If the notice was served by the local authority at the address stated for the owner on the Land Registry entry for the relevant premises, it will be deemed served on the landlord. This is the case even if your tenants or managing agents failed to pass this letter on to you.

If the conversion work was carried out more than four years ago, this could amount to a valid ground to challenge the enforcement notice under the statutory appeals process. However, if the appeal is not made in time, it becomes very difficult to challenge the enforcement notice.

Indeed, section 285 of the 1990 Act provides that the validity of an enforcement notice shall not be questioned in any proceedings, except by way of an appeal within the specified time limit or in proceedings under section 179 where a person:

  • held an interest in land since before the enforcement notice was issued
  • did not have a copy of the enforcement notice served on them under section 179 of the 1990 Act
  • satisfies the court that they did not know and could not reasonably have been expected to know that the enforcement notice had been issued, and that their interests have been substantially prejudiced as a result of the failure to serve them with a copy.

Thus many defences that could have properly been run if legal advice had been taken at an early stage, or the enforcement notice had been challenged within the permitted appeal time, will fail where the local authority can prove that it sent a copy of the notice to the address stated on the Land Registry entry for the property.

1. Consider whether you are vulnerable under the 1990 Act. Are you sure you have planning permission for all alterations and extensions at your property?
2. Add your contact address to the Land Registry entry for the relevant premises. This is a free step, and critical to help avoid issues regarding service of any enforcement notices from the local authority.
3. Regularly check your post at your property or arrange for all post to you to be redirected by the Royal Mail.
4. Consider obtaining retrospective planning permission and, if necessary, make an application at the earliest opportunity.
5. If you do receive an enforcement notice, take legal advice promptly to ensure that you have the best chance of challenging it.

Landlords cannot afford to bury their heads in the sand. If you receive an enforcement notice you must act quickly and obtain legal advice. That will give you the best chance of defending what could be a significant financial penalty.

markbrassey@childandchild.co.uk

daniel.brayley@goughsq.co.uk

Enforcement case studies

In the case of London Borough of Brent v Ali [2014] EWCA Crim 1658, the defendant converted a house into 12 flats and then did not comply with the terms of an enforcement notice. He was tried in the magistrates' court and committed to the crown court for confiscation and sentence.

Although the fine for the offence was only £4,000, a confiscation order was made for the sum of £544,000. It is also worth pointing out that if the sum specified in a confiscation order is not paid by the specified date, a defendant risks a period of imprisonment. In Mr Ali's case he ran the risk of five years in prison if he failed to pay on time.

More recently, in April 2018, the London Borough of Islington secured a confiscation order of £304,458 against a property company that had converted a property into five flats without planning permission.

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