The basic time limits for enforcement action are:

• four years: for ‘building’ and other ‘operations’ there is normally a four-year period from the date of substantial completion;
• four years: if the breach is a change of use of a building to a single dwelling house then there is a four-year period;
• ten years: this applies from the date of breach in all other cases (eg any other change of use).

The ‘second bite’ provision allows the LA to go back and have another go at enforcement action. Under the old law, developers were able to challenge the validity of an enforcement notice and while they were doing so, time continued to run and possibly expire, thus preventing the issue of another notice. Needless to say, the ‘second bite’ action must be in respect of the same breach of planning control.

In Jarmain [1999] there was a temporary planning permission for a mobile home which was subsequently transformed into a single-storey dwelling without the council’s knowledge. The temporary planning permission ran out three years later and the council issued an enforcement notice against retaining the mobile home. Two years later the council discovered that the mobile home had become a single-storey dwelling and they withdrew the first notice, and issued a second alleging the unauthorised erection of a single-storey dwelling. It was argued that the second notice was outside the scope of the ‘second bite’ rule because it was not in respect of the same breach of planning control. However, the court decided that the provision does not require the breach to be identically described in both enforcement notices; the ‘second bite’ provision cannot be used to cover two different developments or two different changes of use, but it can be used (as in that case) to cover two different descriptions of the same development.

In a recent case, the LA mixed up house numbers and so served an enforcement notice with the incorrect address (although both properties were owned, or partially owned, by the same person). There was also confusion over the description of the land. But, those were dismissed as ‘unmeritorious technicalities’ and what mattered was that it was quite clear to the property owner that the LA’s complaint was about the house that he had built without planning permission at the back of one of the properties. Thus, the ‘second bite’ rule applied and the enforcement notice was valid. Romer v First Secretary of State [2006] EWHC 3480 (Admin). © Practical Lawyer