The Levelling Up and Regeneration Act 2023 - a tighter planning enforcement regime
As we discussed in our article on the Levelling Up and Regeneration Bill (as it was then), the Levelling Up and Regeneration Act 2023 (LURA) facilitates the introduction of a number of measures to toughen up the planning enforcement regime as part of the government’s agenda to tackle what it perceives as slow build out and land-banking. However, these measures first require secondary legislation.
Recently, a new set of commencement provisions, the Planning Act 2008 (Commencement No. 8) and Levelling-up and Regeneration Act 2023 (Commencement No. 4 and Transitional Provisions) Regulations 2024, were made which bring into force many of these stricter enforcement mechanisms.
We summarise the key measures introduced by the LURA below and confirm whether these measures are now in force.
1. Commencement notices
The LURA creates a new provision in the Town and Country Planning Act 1990 (the TCPA) which will require service of a commencement notice before carrying out development to help LPAs better track build-out rates in their area (although larger schemes will likely already have equivalent obligations under s.106 and/or CIL).
In the event of failure, the LPA can require service of a notice, and if requiring service of a notice, and if a person does not do so within 21 days that person is guilty of an offence and liable to a fine. This could be a useful tactic for an authority to flush out someone it believes has unlawfully commenced.
We discuss this new requirement in more detail here.
Whilst the power to make regulations setting out the detail of the proposed commencement notices is in force, no regulations have been made and so the requirement to serve a commencement notice is not yet live.
2. Completion notices
The role of completion notices (which are not commonly used) is re-emphasised by the LURA through another proposed new provision in the TCPA.
If an authority thinks that a development will not complete within a reasonable time it may serve a completion notice stating that the permission will cease to have effect at a specified time (at least 12 months from the date of service of the notice and the date of expiry of the permission). This would mean that a new permission would be required to continue any of the development not yet completed – so this could have costly consequences.
The requirement for the Secretary of State confirmation is removed – developers will instead have the right to appeal (on the ground that it is unreasonable or that the appellant considers that the development will be completed within a reasonable period). This will speed up the process, but it remains to be seen whether it will be more widely used given the outcome is ultimately still removal of the ability to complete the relevant development.
Alongside this, the LURA will enable authorities to track delivery of certain types of residential development (so they can then decide whether a completion notice should be served) through the new requirement to submit progress reports at various points in time during a development programme.
As with commencement notices, the power to make regulations for completion notices and residential development progress reports has come into force but no regulations have been published as yet, so these mechanisms are still pending.
3. Power to decline to determine applications in cases of earlier non-implementation
The LURA facilitates the introduction of a very onerous measure intended to tackle land banking, by allowing an authority to decline to determine a planning application where the applicant has previously made (or been connected with) a planning application concerning land in the authority’s area, and where that earlier development has either not begun or its build-out has been unreasonably slow.
These are discretionary, but controversial, powers - given planning permissions run with the land the success of an application is not generally influenced by the identity of the applicant. In practice, these measures will not result in faster build-out.
Again, the ability for the Secretary of State to make regulations for this power has come into force but we still await any such regulations – meaning developers still have a reprieve from this. Developers should nevertheless keep an eye out for regulations relating to the above enforcement measures - regulations could be made swiftly, bringing these powers into practice with little advance notice, but it remains to be seen whether a different government would introduce this measure.
4. Time limits for enforcement
There are currently two different limitation periods for breaches of planning law (either four years or ten years) dependent on the breach. The LURA facilitates the introduction of a blanket 10-year limitation period for all breaches of planning control in England.
This new 10-year limitation period came into force on 25 April 2024 but there are transitional provisions – which we discuss in more detail here.
5. Duration of temporary stop notices
A temporary stop notice is already a useful tool for an authority trying to decide whether to take further planning enforcement action, by immediately requiring that the alleged unlawful activities cease for a short period of time. The LURA strengthens the process by allowing temporary stop notices to remain in force in England for a longer period (56 days rather than the current 28) – this power came into force on 25 April 2024.
6. Enforcement warning notices
From 25 April 2024 local authorities in England have had the power to serve an “enforcement warning notice” where there has been a breach of planning and there is a reasonable prospect that, if a planning application were made, it would be granted. This effectively allows an authority to invite a person to make a planning application to regularise a breach and warning them that, if such an application is not made, further enforcement action will be taken.
This is a sensible way to encourage local authorities to engage with developers and use the planning system to rectify breaches, rather than jumping straight into more formal enforcement proceedings.
7. Undue delays in appeals
Where a person brings an appeal against an enforcement notice, the LURA introduces a new measure such that they cannot benefit from delaying the appeal process (and thereby delaying the effects of the notice).
The power is now available that if it appears to the Secretary of State that the appellant is responsible for undue delay the appeal may be dismissed (unless the appellant takes certain steps in a certain period).
8. Penalties for non-compliance
The LURA also introduces stricter penalties for non-compliance. For example, if an LPA serves a s.215 notice (requiring maintenance of land) the LURA increases the level of fine that can be levied. These higher fines can now be levied.
There is always a risk that a stricter planning enforcement regime dissuades developers from engaging with the planning system rather than (as the government intends) guaranteeing faster build-out. It remains to be seen how frequently LPAs will employ these new mechanisms, and what any new government will do, but developers should be aware of the changing enforcement landscape.
