4-year rule to end at last (but not quite yet)

On 2nd April, the government finally got around to bringing Section 115 of the Levelling-up and Regeneration Act 2023 into force by means of the Planning Act 2008 (Commencement No. 8) and Levelling-up and Regeneration Act 2023 (Commencement No. 4 and Transitional Provisions) Regulations 2024 (S.I. 2024 no. 452). Due to a major computer problem that I encountered, I have been prevented until today from telling you about this.

When commenting on the prospective ending of the 4-year rule on 22 December last year, I said that I would not be surprised if some sort of delayed implementation might be adopted in the wording of the commencement order, and it turns out that this was not merely wishful thinking on my part.

Regulation 3(b) brings section 115 of the 2023 Act (time limits for enforcement) into force on 25 April 2024. However, Regulation 5 contains a transitional provision which provides that the amendments made to the 1990 Act by section 115 do not apply, in the case of a breach of planning control referred to in section 171B(1) of the 1990 Act (relating to operational development, i.e the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land) if the operations are substantially completed before the 25th April 2024 (in practice no later than 24 April), and in the case of a breach of planning control referred to in section 171B(2) of the 1990 Act (relating to the change of use of any building to use as a single dwellinghouse), if the change of use occurs before the 25th April 2024 (in practice no later than 24 April).

This transitional provision is more generous than I had dared to hope. What it means is that if the breach of planning control takes place and is completed no later than 24 April, the 4-year period within which the LPA could take enforcement action will run on unless the Local Planning Authority takes enforcement action within that 4-year period.

There are, of course, several caveats that need to be borne in mind. First, so far as the substantial completion of operational development is concerned, the judgment of the House of Lords in the case of Sage governs what constitutes ‘substantial completion’ (see previous posts on that topic in this blog); and, so far as the making of a change of use of any building to use as a single dwellinghouse is concerned, there are well-known judicial rulings on that issue, again as previously discussed here (and also explained in my book The Essential Guide to the Use of Land and Buildings under the Planning Acts). Beware also the rules relating to ‘concealed’ development, also dealt with in my book.

There is just one anomaly arising from the judicial authorities relating to the determination of the date when a change of use to a single dwellinghouse actually occurs. This is discussed in detail on pages 6 to 9 in Chapter 1 of my book on the Use of Land and Buildings and so I will not repeat the point here. Basically it relates to the actual change of use (Impey and Welwyn Hatfield) and the commencement of the 4-year (or in future the 10-year) period ( Thurrock and Swale) by reference to actual and continuous residential occupation. If these dates are not one and the same, which date applies for the purpose of determining whether the deadline of 24 April has been met or not? The only really safe course would be to ensure that actual residential occupation commences by 24 April 2024 at the very latest, and that it is not then interrupted, for any reason, within the following four years. If there were to be a void period within that 4-year period, the resumption of residential use after that interruption could well be seen as a fresh breach of planning control, with the clock re-set to Zero, and any such subsequent breach of planning control would then be subject to the 10-year rule.

Subject to this one potential problem, which could well be the subject of litigation in such cases, the good news is that so long as the 4-year rule is already running no later than 24 April 2024, it can continue to run as before until or unless the LPA takes enforcement action within that 4-year period. In theory, this means that in some cases where the 4-year rule has started to operate only a very short time before section 115 of the 2023 Act comes into force on 25 April, it could potentially become immune from enforcement, and therefore lawful, four years later at some date before 25 April 2028. (The only reason that I say “in theory” is that there will always be the risk that the LPA will wake up to the fact that the breach of planning control has taken place and serve an enforcement notice within the 4-year period.)

The changes made by Section 115 of the 2023 Act to section 171B of the 1990 Act do not affect the operation of the 10-year rule under section 171B(3) in relation to any other breach of planning control (such as other changes of use and breaches of condition). The 10-year rule continues to operate in those cases, and in future it will also apply to operational development and changes of use to a single dwellinghouse, if the operational development was not substantially completed before 25 April 2024, or if the change of use to a single dwellinghouse did not take place before that date (or perhaps if actual residential occupation did not commence before that date – see above).

© MARTIN H GOODALL

Planning & Environment Update 2024 - BOOKING NOW

On Friday of next week, 23 February, I shall be chairing a seminar in London (and online) which will give everyone an opportunity to get up to speed with the new planning and biodiversity regime that has just come into force (from12 February). The importance of this legislation cannot be over-emphasised. It will have a major impact on the way that development is carried out, and the processes that must now be gone through when planning and getting permission for development.

A whole suite of regulations has now come into force as part of the moves to embed biodiversity into the planning system. From now on, many planning permissions for the development of land in England will be subject to a new general condition requiring approval of a biodiversity net gain plan before development can begin. So planners, developers and their professional advisers need to know what these recent changes mean in practice, so that projects don't fall foul of the increasingly complex and diverse environmental regulations affecting planning decisions. Our expert panel will:

• bring you up to speed with the new Biodiversity Net Gain regime

• provide practical tips and guidance on how to make sure your projects are not biodiversity problems

• update you on the progress of the Environment Act and other policy issues

As ever there will also be a lively panel session where you can ask your own questions, making it an unmissable event for all developers, their advisers and planners.

This seminar is being held at One Great George Street, London, SW1P 3AA (or you can, if you prefer, attend online via Zoom). It starts at 10.00 a.m. that morning and will continue until at 1.00 p.m. The fee of £175+ VAT includes a free copy of Contamination, Pollution & The Planning Process: A Practitioner's Guide and, as a bonus, a free eBook - The Environment Act 2021: A Guide for Planners & Developers (delivered to your inbox when you book a place). With only 9 days left within which to secure your place, there is no time to lose in getting your booking in.

We have an excellent panel of speakers who are experts in their field:

Tom Graham, barrister now acting as a sole practitioner specialising in planning, highway and environmental law. He is also the author of A Practical Guide to Planning, Highways & Developmentand The Environment Act 2021: A Guide for Planners & Developers.

Jacqueline Lean, Barrister, Landmark Chambers.

Alistair Mills, Fellow and College Lecturer in Law at Magdalene College, Cambridge. He is a practising barrister and author of Interpreting the NPPF and co-author of the Fourth Edition of A Practical Guide to Permitted Changes of Use.

Dr Nick White, Principal Advisor - Net Gain, Natural England.

This is the programme in outline:

09.30 - 10.00 - Registration & Refreshments
10.00 - 10.10 - Introduction from the Chair - Martin Goodall
10.10 - 10.40 - Environment Act Update - Where are we now? - Jacqueline Lean
10.40 - 11.10 - Planning Policy & the Environment - current thinking - Alistair Mills

11.10 - 11.30 - Refreshments

11.30 - 12.00 - The new Biodiversity Net Gain regime - Dr Nick White
12.00 - 12.30 - Biodiversity and Planning: practical tips - Tom Graham
12.30 - 13.00 - Panel session

BOOK NOW ON THE BATH PUBLISHING WEBSITE: https://bathpublishing.com/

But hurry – You have only a little over a week left to secure your place.

MARTIN H GOODALL