Planning essentials case update: Does an enforcement notice subsist against a site?

A recent High Court judgment serves as a useful reminder that a planning enforcement notice will subsist against a site unless it is formally withdrawn.

The case of Pathfield Estates Limited v London Borough of Haringey [2023] EWHC 1790 (Admin) considered an enforcement notice which was served in 2008 relating to the unauthorised conversion of a property from two to five flats, with a requirement to restore the property to 2 flats. More than a decade later, after a new breach, criminal proceedings were taken.  

After service of the 2008 enforcement notice, the local planning authority had agreed that the notice would be treated as complied with if Pathfield Estates Limited converted the property into a single dwelling-house, and the authority sent out “closure letters” confirming the same.

A few years later, the council became aware that the property was being used, not as a single dwelling house, but rather as 6 flats. Following an unsuccessful application for a certificate of lawfulness aiming to authorise the lawfulness of the use as 6 flats, the council instigated criminal proceedings. In 2021 Pathfield was convicted for breach of an enforcement notice.

Pathfield appealed to the High Court, arguing that by virtue of the confirmation that the enforcement notice had been complied with in 2008, the council had implicitly waived or varied the requirement to reinstate the property. The High Court disagreed – finding that the council had only indicated that it would not enforce against a single dwelling, not that the enforcement notice no longer prohibited use as more than 2 flats.

The case is an important reminder of how an enforcement notice can still bite after many years.

Of some assistance to developers is the fact that the Town and Country Planning Act 1990 (TCPA) gives authorities flexibility in terms of management of enforcement notices. For example, authorities can:

• serve a letter on a person assuring them that they will not face prosecution for breach of an enforcement notice (but they may subsequently withdraw such an assurance) (section 172A TCPA);
• waive or relax a requirement of an enforcement notice (section 173A(1)(b); or
• completely withdraw an enforcement notice (section 173A(1)(a) TCPA).

However, the TCPA explicitly states that compliance alone does not discharge an enforcement notice (section 181). Therefore, landowners should be reminded that:

• Assurances by a local planning authority that certain acts will be sufficient to comply with an enforcement notice will not preclude an authority from relying on the notice in the future.
• Any relaxation, waiving or withdrawal of an enforcement notice should be evidenced by formal notice.
• An enforcement notice will subsist unless it is formally withdrawn. Therefore, unless it is withdrawn, the risk of enforcement for any breach will persist.