Why retrospective planning permission is a risky strategy

It is sometimes said that ‘it is better to seek forgiveness than ask for permission’.

In the UK, planning enforcement is discretionary and these powers may not be invoked where breaches are minor. It is also a feature of the planning system that one is entitled to seek consent retrospectively where an alleged breach of planning control has occurred – but running the gauntlet in this way can be risky and costly for landowners who ultimately fail to obtain the requisite permission.

Firstly, in cases where deliberate and flagrant attempts are made to conceal breaches, and to evade enforcement controls, irregularities may be enforced many years after any ‘ordinary’ breach would have become lawful according to the standard ‘4-year’ or ’10-year’ time limits for enforcement.

Secondly, if the departures from the authorised plans are deemed to be significant, giving rise to serious planning impacts, then local authorities may treat the entire development as unlawful (and subject to cessation or removal) notwithstanding that planning consent was originally obtained.

The media generally loves a good planning enforcement story especially where the rich and famous fall foul of these rules. Last year it was reported that Jeremy Clarkson had failed in his bid to gain retrospective approval for the roofing materials used on his “Diddly Squat” ‘non-organic store’. After obtaining planning permission, his building contractor installed a green steel sheet roof without first seeking consent for the choice of materials, as required by planning conditions. The planning officers decided that the Cotswold surroundings required a more traditional and expensive slate roof to be used, and after his appeal was dismissed, Jeremy replaced the roof accordingly. The headache continues for Clarkson, as earlier this year West Oxfordshire District Council issued him with a planning contravention notice, citing the placement of seating and lavatories as actively encouraging the public “to visit and remain on site”. This follows the Council’s refusal to grant him planning permission for both a restaurant and an extension to his car park and farm track.

Another news story recently broke regarding Richard Caring, the billionaire owner of The Ivy, whose builders introduced significant changes to the approved plans during the construction of his new home.

This led to refusal of an application for retrospective permission by the Royal Borough of Kensington and Chelsea Council, followed swiftly by an enforcement notice requiring removal of certain windows. If the owner’s appeal is dismissed, then he will need to comply with the terms of the enforcement notice, or risk criminal prosecution.

Illegal developments will sometimes fall within the scope of the Proceeds of Crime Act 2002, where the gross proceeds of the unlawful use or development can potentially be recovered under the terms of a Confiscation Order. In the planning field, notorious cases include “beds in sheds” where rogue landlords let out garden outbuildings to illegal migrants, and illegal parking sites close to airports. Confiscation orders are used relatively infrequently but as local authorities are becoming increasingly familiar with the reach of these powers, it seems to be a growing trend with some eye-watering sums being collected.

However, it should be observed that the wheels of planning enforcement will often turn very slowly, much to the annoyance of neighbours who must put up with the offending development for potentially many years whilst any application and appeal routes are exhausted. Local authorities are generally reluctant to issue prohibitive injunctions and can be unduly fearful of taking swift and decisive action. Until there are stricter penalties for failing to adhere to planning permission, the wider public interest will generally suffer.

If you have any questions on the issues raised in the article, please contact Ben Garbett.