What happens when you build without planning permission?

A recent case in north London saw a property barrister get to keep his new rear extension, despite having no planning consent to speak of; so does this create flexibility around permission, and has the system been undermined? Eleanor Grindley warns that others may not be so lucky…

The recent decision by the High Court in Camden LBC v Galway-Cooper appears to have caused further uncertainty in connection with obtaining planning permission and if and when it is required.

By way of background, Mr Galway- Cooper and his wife arranged for a three storey extension to be built to the rear of their property in Hampstead, without obtaining planning permission from their local planning department at Camden Council. On this basis, a planning breach had occurred. 

Galway-Cooper relied on expert evidence setting out that the rear wall of the £1.85m detached house could not be restored

Camden Council were responsible for taking whatever enforcement action they deemed necessary and in this case, served an enforcement notice in 2014.

When making a decision as to what enforcement action to take, Camden Council would have to have considered the proportionality of their response, public interest and the National Planning Policy Framework.

The Enforcement notice served upon Mr Galway-Cooper and his wife set out that the extension built must be removed, and the rear wall returned to the state it was in prior to the extension works. Compliance was required by September 2015.

The notice was not complied with.

Camden Council brought criminal proceedings against Mr Galway-Cooper in respect of the failure to comply. Mr Galway-Cooper defended the proceedings on the basis he had done everything possible to secure compliance, but that compliance was not possible and he relied upon expert evidence setting out that the rear wall could not be restored as it had been, or to a sufficiently similar state due to the nature of the works required. Mr Galway-Cooper was successful in his defence, and thereafter in a subsequent appeal by the Council. It is of note that Mr Galway-Cooper is a barrister, who specialises in property matters.

Mr Galway-Cooper then had no planning permission, built an extension in any event and could not be prosecuted for doing so. Why, you might ask then can’t you?

The judge in this case did express that he found the position troubling, as I imagine do many local councils

It does seem that the decision creates further uncertainty and some might say, an opportunity for those who wish to build what they like without consent and for the consequences to vary depending on where you live, what the soil is like, and the nature of the works. The judge in this case did express that he found the position troubling, as I imagine do many local councils.

I would not advise however going ahead with any works you like and relying on this decision by the High Court on the Galyway-Cooper property. Litigation is often costly and uncertain, and can add further costs to what may already be a carefully planned and budgeted project. The decision made in this case and the defence submitted was specific to the circumstances, the works, the building, etc.

It still remains that if you want to:

  • build on a bit of land/create a new building
  • make a major change, such as adding an extension to a building
  • change the use of a building

You will probably require planning permission. This would involve, before works begin, making an application to the planning department of the relevant local authority through the planning portal and in the standard format. If you aren’t sure about how to go about this, you can seek advice from a specialist lawyer or planning consultant.

Your application will then either be granted, granted subject to certain conditions, or refused.

If the application is refused, any conditions imposed are not met, or if the permission is not sought and granted before any works take place, you may well be in breach of planning control.

A breach of planning control is defined in section 171A of the Town and Country Planning Act 1990 as:

  • the carrying out of development without the required planning permission; or
  • failing to comply with any condition or limitation subject to which planning permission has been granted.

In the event of a breach, enforcement action may be taken against the owner of the relevant property by the local authority, and at their discretion.

Enforcement action may be formal or informal. If the planning authority use their discretionary powers to take formal action, then an enforcement notice may be served and it will set out what has given rise to the breach and what should be done and by when to remedy the breach.

It is a criminal offence to not comply with terms of the enforcement notice within the period specified in the notice, if it is not successfully appealed. Those in breach may also be subject to an unlimited fine.

These rules apply to us all, but the approach from local authority to local authority may differ, as the planning department within each authority may use their discretion as to if they should enforce, and by what method. This in its self can give rise to uncertainty to those wishing to undertake works and what will happen, if anything, if a breach is committed depending on the area in which the breach is committed. 

A number of councils have published guidelines in respect of how planning applications are dealt with, and I would recommend reviewing any such document from your local authority if you are contemplating works for which planning permission is required. Camden do have their own policy, published in 2014 so perhaps as a result of their dealings with Mr Galway-Cooper.

A full, clear and reasoned planning application, and a dialogue with the local authority seems to be a much more sensible approach than spending years litigating and risking a criminal record, and unlimited fine.

Whilst in this case, Mr Galway-Cooper managed to avoid a criminal record, you may not be so lucky.

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