Expediency, de minimis and immunity

Expediency

The Council’s planning enforcement team has discretionary powers to enforce against breaches of planning control. This means that the Local Planning Authority is not obliged to take further action simply because there has been a breach. Enforcement action should only be taken where the Local Planning Authority is satisfied that is ‘expedient’ to do so. This assessment takes into account both national and local planning policies and any other material planning considerations. In making this assessment the Council will gather evidence regarding the nature and scale of the breach, and whether it adversely affects amenity.

Section 172(1) of the Town and Country Planning Act 1990 sets out that a Local Planning Authority can issue an enforcement notice where:

1. there has been a breach of planning control; and
2. it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations

In relation to Section 172(1)(b) above, expediency applies equally to decisions not to take enforcement action or to under enforce. Forming the judgement that a breach is not expedient to take action against requires careful consideration and assessment, which has to relate strictly to material planning considerations.

The determination of ‘expediency’ and the decision to enforce against a breach of planning can be pressured from external influences. These can include public opinion from residents that are against a development. Further pressure can be brought by threats to involve the Ombudsman, a local councillor or MP. Notwithstanding the nature or the extent of complaints, expediency is still a matter for the Local Planning Authority and if it decides to exercise this discretion and take no action, the reasons for doing so should be explained in detail to all complainants.

De Minimis

De Minimis is a Latin expression meaning “pertaining to minimal things”. As a legal term, this means that a factor is too small to be meaningful or taken into consideration.

In the context of planning, this expression is used to refer to breaches of planning regulations that may be very small in dimension, and/or has an impact that is negligible. One example of this in planning would be a building that is constructed 5cm higher than the permitted height.

As long as it is considered that this will not unacceptably affect amenity or cause any harm, then the Local Planning Authority would use its discretionary powers to determine that it would neither be reasonable nor proportionate for further action to be taken. This ties in with the previous explanation of expediency, in determining whether to take action against a breach of planning. 

Immunity

Section 171B of the Town and Country Planning Act 1990 sets out the time limits for taking enforcement action. These are:

• The carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land – four years from substantial completion
• The change of use of any building to use as a single dwellinghouse – four years from the date of the breach
• All other changes of use and breaches of conditions – 10 years from the date of the breach

If owners of land or property, consider that a breach of planning control has become immune from enforcement action they may apply for a Lawful Development Certificate (LDC). If granted, such a certificate provides documentation to establish the lawfulness of the existing development.

‘Substantial completion’ is not always clear and is a matter of fact and degree. A building is complete when it is complete for the purposes for which it was intended. Where a building has been built in stages, each stage may open a new chapter in its planning history; if lawfulness of a previous stage has not been accrued and demonstrated, this will restart the clock.

If a breach of planning control is demonstrated to be beyond the aforementioned time limit for taking enforcement action, then the breach would be immune, and the Local Planning Authority would be unable to take any further action.