Retrospective planning applications

A Simple Introduction from Our Experience

Discovering that a part of your property—an extension, a loft conversion, or an outbuilding—may not have the required planning permission can be a daunting and stressful experience. At London Extend, we want to reassure you that this is a common situation, and there is a clear legal pathway to resolve it: the Retrospective Planning Application.

This issue often arises from an honest mistake, such as a misunderstanding of complex Permitted Development Rights, or from works carried out by a previous owner. It's important to understand that carrying out development without permission is not a criminal offence (unless it involves a listed building). It is, however, a breach of planning control, which your local council has the power to act upon. A retrospective application is your formal opportunity to regularise the situation and secure the necessary permission after the work has been done.

The Concept in Plain English: What is a Retrospective Application?

A retrospective planning application is exactly what it sounds like: a planning application submitted to the council after a development has been built or a change of use has occurred. It provides an opportunity to put things right and avoid more serious and costly formal enforcement action.

Often, the process is initiated by the council itself. If a breach of planning control is brought to their attention, their first step is often to invite you to submit a retrospective application to try and resolve the matter collaboratively.

The Council's Assessment: A Fair and Impartial Process

When you submit a retrospective application, a crucial principle applies: the council is legally required to assess your application on its planning merits alone.

This is a double-edged sword. On one hand, you will not be penalised simply because the work has already been carried out. The application will be treated the same as if it were for a proposed development. On the other hand, the fact that the building is already complete does not give you any greater chance of securing approval. The officer will assess the development against all relevant local and national planning policies as if it hadn't been built yet. If it would have been refused before, it is likely to be refused now.

How This Impacts Your Project in London

The issue of unauthorised development is particularly prevalent in London for two key reasons:

1. The Property Market Driver: In our experience, the most common trigger for needing retrospective permission in London is the property sales process. During conveyancing, solicitors conduct thorough checks. Any unauthorised works will be flagged, and the buyer's mortgage lender will almost certainly require the situation to be formally regularised before they will release funds.

2. Proactive Enforcement: With London's dense housing, high property values, and active community groups, breaches of planning control are more likely to be noticed and reported. London boroughs typically have well-resourced enforcement teams who are duty-bound to investigate any alleged breach.

Key Scenarios: When to Submit a Retrospective Application

There are two main scenarios where a retrospective application is used, but it's vital to first consider the alternative route.

The Alternative Route: Is a Lawful Development Certificate (LDC) an Option?

Before considering a retrospective application, the very first question we ask is: how old is the unauthorised development? If the work was completed a long time ago, it may have become immune from enforcement action.

• For a breach of a planning condition, immunity is gained after 10 years of continuous breach.

• For the creation of a new, separate dwelling, immunity is gained after 4 years.

If the time limits have passed, the correct route is not a retrospective application, but an application for a Lawful Development Certificate (LDC). This is a more robust solution, as it is a certificate confirming the development is lawful based on factual evidence and the passage of time, not on subjective planning policies.

! Important Legislative Update: The End of the 4-Year Rule !

The Levelling Up and Regeneration Act 2023 will abolish the 4-year rule for all new breaches, making them subject to the standard 10-year rule. While the exact date for this change is pending, it is imminent. If your case relies on the 4-year rule, we urge you to seek immediate professional advice.

Scenario 1: In Response to the Council If the council's enforcement team writes to you about a breach, they will often invite a retrospective application as a first step. This is your chance to make your case. If the application is approved, the matter is closed. If it is refused, the council will almost certainly proceed with issuing a formal enforcement notice.

Scenario 2: To Regularise a Property for Sale or Remortgaging As mentioned, this is a very common requirement to provide legal certainty for buyers and lenders. It's about "cleaning up" the property's planning history.

If Your Application is Refused: The Next Steps

A refusal of retrospective permission is a serious matter, and you need to act quickly. The council will likely move to issue an enforcement notice, which typically requires you to demolish the unauthorised work and return the land to its former condition.

You have the right to appeal the council's refusal to the national Planning Inspectorate. If you do this promptly, most councils will hold off on serving an enforcement notice until the appeal is decided. However, the planning system essentially gives you one main opportunity to argue that permission should be granted (known as "ground (a)" in an enforcement appeal). If you have already had a retrospective application refused, you cannot use this ground of appeal again if the deadline to appeal the planning refusal has not yet passed.

Our Concluding Advice: A Proactive Strategy is Key

Facing a planning breach can be unsettling, but ignoring the issue is the worst possible course of action. A formal notice from the council is not something that will go away.

The key is to face the situation head-on with a clear, proactive strategy. The best path forward depends entirely on the specifics of your case. It could be a robustly argued retrospective application, a meticulously evidenced LDC application, or a strategically fought appeal. At London Extend, we have extensive experience in assessing these complex situations and advising on the most effective route to secure the best possible outcome.