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. We summarise the key measures introduced by the LURA below.

1. Commencement notices 

The LURA requires 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.

2. Completion notices 

The role of completion notices (which are not commonly used) is re-emphasised by the LURA. 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.

3. Power to decline to determine applications in cases of earlier non-implementation 

The LURA introduces 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.

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.

Whilst this is not yet in effect, it is unclear if there will be any transitional provisions affording protection to those who are currently benefitting from the 4-year period. Such persons should therefore consider the appropriateness of an application for a Certificate of Lawfulness to confirm lawfulness of their unauthorised works.

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).

6. Enforcement warning notices 

The LURA introduces a new power in England 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).

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.  

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. The above measures are not yet in force and require secondary legislation – so developers have a reprieve before authorities are able to employ these new mechanisms.