With most planning applications work has yet to start on the project. However, there are instances where work may have already started or been completed. If the works do not come under permitted development rights the local enforcement department may become aware of the works. This is where a retrospective planning application may be a suitable means to address the situation and regularize the development in planning terms. The retrospective planning application process is used to secure permission for development ‘after the fact’ of it taking place.
There are some applications that are classified as a retrospective but the majority of the development has yet to take place. Common instances of this kind are where the applicant has already started ground works which are considered development. Some applicants see this approach as a means to speed up the development process. However, if the application is refused the local authority would expect the ground works to cease and reinstate the land to its previous condition.
If you have been contacted by your local planning enforcement department its important to address the situation as quickly as possible. You want to see if they will allow you to submit a retrospective planning application before an enforcement notice is served.
Does the Local Planning Authority have to accept a Retrospective Planning Application?
No, they don’t, with the introduction of the Localism Act 2011 local planning authorities (LPA’s) were given new powers. If a pre-existing enforcement notice is in place a retrospective planning application will not be accepted.
Under Section 70A of the Town and County Planning Act, the LPA has further powers to refuse a retrospective application. For instance, let’s presume a similar application was submitted for the existing development within the last 2 years. Let’s also presume there has been no change to local planning policies. Then the LPA can determine there has been no ‘material’ change in planning terms and refuse to accept the retrospective application. There is no right of appeal against this refusal, there is only the right to challenge the decision via judicial review to the High Court.
No Plausible Means to Approve
The LPA will also refuse to accept a retrospective planning application if they see no plausible means to approve the application. In other words, if the existing development causes such significant harm to the local landscape character or Green Belt. Furthermore, the amenity issues may be so significant in terms of impact on loss of light, privacy, noise or smell.
However, if the LPA then proceed to issue an enforcement notice for the development an appeal against the enforcement notice can be made via a Ground A appeal. This is also known as a deemed planning application (DPA). The Inspector will then consider the planning merits of the case. With a deemed planning application a fee has to be submitted for the Inspector to consider the planning merits of the case.
How to secure Retrospective Planning Approval
If the LPA is willing to accept a retrospective planning application its likely they will set a date by which it must be submitted. If the retrospective application is not submitted by this date it’s likely they will issue an enforcement notice. It is a criminal offence not to adhere to an enforcement notice, so you should never ignore it.
With the submission of your retrospective application, you need to have a good understanding of the current planning situation in terms of local and national planning policy. For instance, this could include a solid understanding of Green Belt planning policy. It’s also a good idea to do an extensive planning search for relevant local decisions. These can help to shape your arguments and strategy.
Thorough Research is Essential
You also need to have a clear understanding of what development the LPA believes to have taken place. For instance, you may believe that part of the development is immune from enforcement due to the passage of time. A thorough look into the planning history of the property can be of assistance. In that case, it may be possible to submit a lawful development certificate for part of the works.
If during the discussion with the LPA on the retrospective application they have significant issues it’s helpful to be flexible. For instance, you may be able to amend the proposals to remove certain aspects of the existing development. This may involve lowering the ridge height of a roof structure due to impacts on landscape and local character. It may involve removing certain aspects of the existing structure which have negative neighbour amenity impacts. While it may not be desirable to have to spend time and money modifying the structure, refusal of the retrospective application could result in a loss of the structure altogether.
How long does it take to get Retrospective Planning Permission?
For retrospective applications, the determination period is the same as other householder or full planning applications for minor developments of 8 weeks. During that period it’s important you or your planning agent/consultant are in contact with the case officer. You need to try and establish a constructive relationship where they are detailing any concerns they have with the proposals. You then have the option to amend the proposals or for them to determine the proposals as is.
It’s good to have a conversation with the planning officer on the phone, via email and a face to face conversations if possible. Email serves a good record of the conversations, however, the subtext is often lost. With a face to face or phone conversation its usually possible to get more of a feel whether the application is heading for approval or refusal.
What happens if the Retrospective Planning Application is Refused?
If a retrospective planning application is refused it’s likely that the local enforcement will be in contact again. They will usually state that the development needs to be removed and the site returned to its previous condition/use. If this is not done by a certain date an enforcement notice will be served. The enforcement notice will state another date by which development must be removed/ceased. Otherwise, the local planning authority may begin legal proceedings.
As stated previously like most planning proceedings there is a right of appeal. However, it’s important to note that you have less time to start enforcement appeal proceedings than with other planning matters. Usually, an appeal must be submitted within 28 days of the enforcement notice being served.
As with any planning appeal (but especially an enforcement appeal) you need to be aware that the LPA may seek costs against you. If the Inspector believes the appellant has behaved unreasonably in the submission of the appeal they may award costs. Costs awards, however, can go in both directions and may be awarded against the LPA. The risk of a costs award does need to be acknowledged. Therefore trying to secure retrospective permission for development should always be the first approach.
Assistance with a Retrospective Planning Application
If you have been requested by your local planning authority to submit a retrospective planning application please get in touch. We can discuss your current situation and if a retrospective application is the best means to proceed. 🙂