Section 179 Town and Country Planning Act

The Issuing of an Enforcement Notice

The first stage is usually for the Local Authority to warn a land-owner or an individual with interest in the land that there appears to be a breach of planning. Ordinarily, it is possible to resolve these matters with by way of a retrospective planning application or by carrying out remedial works. Sometimes, the Local Authority will issue a Planning Contravention notice rather than proceeding straight to an enforcement notice.

If this cannot be resolved, the Local Authority retains the power to issue an enforcement notice pursuant to Section 172 of the Town and Country Planning Act, 1990.

An enforcement notice should only be issued where the local planning authority is satisfied that it appears to them that there has been a breach of planning control and it is expedient to issue a notice, taking into account the provisions of the development plan and any other material considerations.

The Council are required to ensure that the provisions of the European Convention on Human Rights, such as Article 1 of the First Protocol, Article 8 and Article 14, are relevant when considering enforcement action. 

What Time Limits Apply?

Section 171 B of the Town and Country Planning Act sets out the time limits that apply before a breach of planning control becomes immune from enforcement:

- within 4 years of substantial completion for a breach of planning control consisting of operational development;

- within 4 years for an unauthorised change of use to a single dwelling house;

- within 10 years for any other breach of planning control (essentially other changes of use).

How to Appeal an Enforcement Notice

An Enforcement Notice can be appealed if it is not correctly issued, is time barred or can be the subject of a judicial review. There is a right of appeal for anyone who has an interest in the land to which the enforcement notice relates, or who is a relevant occupier, whether or not they have been served with a copy of the notice.

The important factor to remember is that the appeal must be lodged before the enforcement notice comes into effect.

Section 174 of the Town and Country Planning Act sets out the potential grounds of appeal:

- planning permission ought to be granted or the condition or limitation concerned ought to be discharged;

- the matters stated in the enforcement notice have not occurred;

- the matters stated in the enforcement notice (if they occurred) do not constitute a breach of planning control;

- at the date when the notice was issued, no enforcement action could be taken;

- copies of the enforcement notice were not served in accordance with the relevant statutory requirements;

- the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary either to remedy any breach of a planning control or to remedy any injury to amenity which has been caused by any such breach; and/or

- any period specified in the notice falls short of what should reasonably be allowed.

What if the Order remains and is Breached?

If an enforcement order comes into effect, it is vitally important to either comply or seek to avoid enforcement action.

If the enforcement order is not complied with, it can result in an unlimited fine or a period of two years imprisonment. There can also be proceedings issued pursuant to the Proceeds of Crime Act 2002, which can result in draconian financial implications.

The Local Authority can issue proceedings against an individual named in an Enforcement Notice after the 'Compliance Period' has expired.

The main defence against a charge brought under Section 179 of the Town and Country Planning Act is for a land owner to show that they did everything they could to comply with the notice (Section 179 (3)).

It is also a defence to show that the person charged has not been served with the requisite notice and is not kept in the appropriate register. The appropriate register is that which contains the details of the requisite notices as set out in Section 188.