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