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Planning · England, with Wales noted

The ten year rule

When a planning breach becomes lawful, how to prove it, and the 2024 change

What the rule is

Section 171B of the Town and Country Planning Act 1990 sets a period after which the council can take no enforcement action against a planning breach. Once the period has run, the breach is lawful for planning purposes and you can ask the council for a certificate that says so.

For land in England there is now one period for every kind of breach: ten years. That has been the position since 25 April 2024, when section 115 of the Levelling-up and Regeneration Act 2023 came into force. Before that date England, like Wales, had two periods: four years for building works and for a change of use to a single house, and ten years for everything else.

Section 171B(1)(a) now gives ten years from substantial completion for building, engineering, mining or other operations in England. Section 171B(2)(a) gives ten years from the date of the breach for a change of use of a building to a single dwellinghouse in England. Section 171B(3) gives ten years from the date of the breach for any other breach, which covers every other change of use and any breach of a planning condition.

Two things sit outside the rule. Section 171B(2A) says there is no time limit for “relevant demolition”, meaning unauthorised demolition of a building in a conservation area. Works to a listed building are dealt with under a different Act, covered below.

Wales

Wales kept the old split. Section 171B(1)(b) gives four years from substantial completion for operational development in Wales, and section 171B(2)(b) gives four years for a change of use to a single dwellinghouse in Wales. Section 171B(3) gives ten years for everything else in both countries.

The transitional position in England

The change was not retrospective. Regulation 5 of the commencement regulations (SI 2024/452) says the section 115 amendments “do not apply where” the operations “were substantially completed”, or the change of use to a single dwellinghouse “occurred”, before the day section 115 came into force. So the test is a single date. If building works were substantially completed before 25 April 2024, or a building was first used as a single house before that date, the old four year period applies to that breach, whether it had already expired or was still running. A house completed in March 2024 became immune in March 2028; one completed in May 2024 will not be immune until May 2034. Other breaches (a change of use to a workshop, a caravan on the land, a condition not complied with) have always carried ten years, so the change made no difference to them.

When the period starts

For building works the clock runs from substantial completion, not from the start of the works and not from first occupation. A shell with no roof is not substantially completed. The person claiming immunity has to show the date, so keep the last invoice, the final building control inspection, the date the scaffold came down.

For a change of use the clock runs from the date the new use began, and the use has to continue for the whole period without a material break. A barn used as a house for three years, empty for four, then occupied again starts the period afresh on the second occupation. The same applies to a breach of condition: the clock runs from the first breach and the breach must be continuous.

Proving it

Section 191(4) puts the burden on you. The council must issue a certificate if you provide “information satisfying them of the lawfulness at the time of the application”; otherwise it must refuse. The planning practice guidance (paragraph 006, reference ID 17c-006-20140306) says that where the council has no evidence of its own to contradict yours, there is no good reason to refuse “provided the applicant’s evidence alone is sufficiently precise and unambiguous to justify the grant of a certificate on the balance of probability”. The council may make its own enquiries but must put anything it finds to you for a reply.

Good evidence is dated, independent and continuous:

  • Council tax records showing the property banded as a separate dwelling, with the start date
  • Electoral roll entries
  • Utility bills, bank statements, insurance policies and post addressed to the property, in a continuous run
  • Building control records, invoices and receipts for the works
  • Dated photographs, and aerial imagery with a known capture date
  • Tenancy agreements and deposit scheme certificates where the property has been let
  • Statutory declarations from people with direct knowledge: the owner, tenants, neighbours, the builder

A statutory declaration is sworn before a solicitor or commissioner for oaths under the Statutory Declarations Act 1835, and a false one is an offence. Declarations that are specific (dates, what was seen, how the declarant knows) do far better than general assertions, with the exhibits attached. Build a timeline for the whole period and show something for each year.

Certificates of lawfulness

A certificate of lawfulness of existing use or development (CLEUD) is applied for under section 191 by any person. It confirms that an existing use, existing operations, or an existing failure to comply with a condition is lawful. Under section 191(2) a use or operation is lawful if no enforcement action may then be taken against it, because the time for enforcement has expired or for any other reason, and it does not contravene an enforcement notice then in force. Under section 191(6), while a certificate is in force, lawfulness “shall be conclusively presumed”. Section 191(7) lets the council revoke a certificate obtained by a false statement or by withholding material information.

A certificate of lawfulness of proposed use or development (CLOPUD) is applied for under section 192. It confirms that a use or works you intend to carry out would be lawful, for example because the works are permitted development. Under section 192(4) the presumption of lawfulness holds unless there is a material change in the relevant circumstances before you begin.

The application is made under article 39 of the Town and Country Planning (Development Management Procedure) (England) Order 2015. It must include a scaled plan showing north, “such evidence verifying the information included in the application as the applicant can provide”, and a statement of your interest in the land and of any other person with an interest. The council must decide within eight weeks of the day after receipt, or a longer period agreed in writing. A refusal must give full reasons and can be appealed under section 195. Planning merits are irrelevant; the council decides on evidence alone.

The fee is set by regulation 11 of the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012 as amended: an existing use certificate costs the same as a planning application for that development, a proposed use certificate half that. Fees rise each 1 April with the consumer prices index. The current figures are in the MHCLG table “Planning fees: annual indexation from 1 April 2026” [TO CONFIRM the amount for the case in hand].

Concealment

Two cases changed how the rule operates. In Secretary of State for Communities and Local Government v Welwyn Hatfield Borough Council [2011] UKSC 15 (6 April 2011), Mr Beesley obtained permission for a hay barn, built what was outwardly a barn and inwardly a house, lived in it for four years and applied for a certificate. The Supreme Court held that his deliberate deception disentitled him from relying on the four year rule: a person should not profit from their own wrong. In Fidler v Secretary of State [TO CONFIRM neutral citation, Court of Appeal, 2011] a house was built behind straw bales and tarpaulin kept up for four years. Removing the screen was held to be part of the building operations, so the works were not substantially completed until it came down.

Parliament then added a statutory route. Sections 171BA to 171BC, inserted by the Localism Act 2011 from 6 April 2012, let a council in England apply to the magistrates’ court for a planning enforcement order. Under section 171BB(1) the application must be made within six months of the date on which evidence sufficient, in the council’s opinion, to justify it came to the council’s knowledge. Under section 171BC(1) the court may make an order only if satisfied on the balance of probabilities that the breach has to any extent been deliberately concealed by any person, and that the order is just in all the circumstances. Under section 171BA(2) and (3) the order gives the council an “enforcement year”, beginning 22 days after the decision, in which it may act whether or not the section 171B period has expired.

For a buyer, a certificate is only as good as the evidence behind it: one obtained on a false statement can be revoked under section 191(7), and a concealed breach can be reopened.

Listed buildings

There is no time limit for unauthorised works to a listed building. Section 38(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 lets the council issue a listed building enforcement notice whenever it appears that works have been executed in contravention of section 9, which also makes the works a criminal offence. A window replaced in 1995 without listed building consent can still be the subject of a notice today, served on the current owner. This is why the seller’s property information form asks specifically about listed building consent.

Conditions and breach of condition notices

A breach of condition carries the ten year period under section 171B(3). The council can issue an enforcement notice, which carries a right of appeal, or serve a breach of condition notice under section 187A on any person carrying out the development or having control of the land, requiring compliance within not less than 28 days from service. There is no appeal to the Secretary of State against a breach of condition notice; non-compliance is an offence and the only challenges are judicial review or a defence in the magistrates’ court. Section 171B(4) also lets the council take further enforcement action within four years of earlier action for the same breach, so one notice does not exhaust its powers.

Retrospective applications

Section 73A lets the council grant permission for development already carried out, whether it was done without permission, under a temporary permission that has expired, or in breach of a condition. Permission may be granted with effect from the date the development was carried out. A retrospective application is judged on the same planning merits as any other; the fact that the building exists gives no advantage and no penalty in law.

Two limits apply in England. Section 70C lets the council decline to determine an application that would in effect grant permission for matters in an enforcement notice issued before the application was received. Section 174(2A) removes ground (a) from an enforcement appeal where the notice was issued after a related application had been made but before the time for deciding it had expired. Both exist to stop applying and appealing in turn to run out the clock.

If the council serves an enforcement notice inside the period

An enforcement notice under section 172 sets out the breach, the steps required and the time for compliance. Anyone with an interest in the land, or a relevant occupier, may appeal under section 174 to the Secretary of State (in practice the Planning Inspectorate) before the notice takes effect, and under section 175(4) the notice is of no effect while the appeal is pending. The grounds in section 174(2) are:

Ground What it says
(a) Planning permission ought to be granted for the breach, or the condition ought to be discharged
(b) The matters alleged have not occurred
(c) The matters, if they occurred, do not constitute a breach of planning control
(d) At the date the notice was issued, no enforcement action could be taken (the time limit had expired)
(e) Copies of the notice were not served as section 172 requires
(f) The steps required exceed what is necessary to remedy the breach or any injury to amenity
(g) The period for compliance falls short of what should reasonably be allowed

Ground (d) is the ten year rule as a defence: the burden is on the appellant, on the balance of probabilities, with the same evidence as for a certificate. Ground (a) is in effect a planning application and carries a fee [TO CONFIRM current figure]. Ground (c) covers arguments that the works were permitted development or that no material change of use occurred. Once a notice is upheld and the compliance period passes, non-compliance is an offence.

Sources

  • Town and Country Planning Act 1990, section 171B: https://www.legislation.gov.uk/ukpga/1990/8/section/171B
  • Levelling-up and Regeneration Act 2023, section 115: https://www.legislation.gov.uk/ukpga/2023/55/section/115
  • SI 2024/452, regulation 5 (transitional provision): https://www.legislation.gov.uk/uksi/2024/452/regulation/5/made
  • TCPA 1990, sections 171BA, 171BB, 171BC: https://www.legislation.gov.uk/ukpga/1990/8/section/171BA and following
  • TCPA 1990, section 191: https://www.legislation.gov.uk/ukpga/1990/8/section/191
  • TCPA 1990, section 192: https://www.legislation.gov.uk/ukpga/1990/8/section/192
  • TCPA 1990, section 174: https://www.legislation.gov.uk/ukpga/1990/8/section/174
  • TCPA 1990, section 175: https://www.legislation.gov.uk/ukpga/1990/8/section/175
  • TCPA 1990, section 73A: https://www.legislation.gov.uk/ukpga/1990/8/section/73A
  • TCPA 1990, section 70C: https://www.legislation.gov.uk/ukpga/1990/8/section/70C
  • TCPA 1990, section 187A: https://www.legislation.gov.uk/ukpga/1990/8/section/187A
  • Planning (Listed Buildings and Conservation Areas) Act 1990, section 38: https://www.legislation.gov.uk/ukpga/1990/9/section/38
  • DMPO 2015, article 39: https://www.legislation.gov.uk/uksi/2015/595/article/39
  • Planning practice guidance, Lawful development certificates, paragraph 006 (17c-006-20140306): https://www.gov.uk/guidance/lawful-development-certificates
  • Fees guidance and the annual indexation table: https://www.gov.uk/guidance/fees-for-planning-applications and https://www.gov.uk/government/publications/planning-fees-annual-indexation-from-1-april
  • SSCLG v Welwyn Hatfield BC [2011] UKSC 15: https://www.supremecourt.uk/cases/uksc-2010-0036.html
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