Building Safety: Planning enforcement and the Responsible Actors Scheme (the ‘RAS Enforcement PPG’)
Responding to breaches of planning control under the Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023.
Applies to England
RAS Regulations and the planning prohibition: overview
What are the Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023 (‘the RAS Regulations’)?
The Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023, made under Sections 126-129 and 168 of the Building Safety Act 2022, create a Responsible Actors Scheme, a Building Industry Scheme made under sections 126-127 Building Safety Act 2022. Eligible residential developers who do not join the scheme can be subject to planning and building control prohibitions. More information can be found here: Responsible Actors Scheme.
The planning prohibition prohibits applicable persons (referred to as ‘prohibited developers’ in this guidance) from carrying out prohibited development. The prohibition applies to development where full planning permission is granted after 4 July 2023 (unless it is covered by an exception - see question 2).
This prohibition does not alter the planning permission itself or the ability of a prohibited developer to apply for and be granted planning permission but prevents them from carrying out prohibited development. It also does not affect the ability of a developer to buy or sell land.
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Are there any exceptions from the planning prohibition under the RAS Regulations?
The prohibition only applies to major development, as defined by the Development Management Procedure Order 2015 (The Town and Country Planning (Development Management Procedure) (England) Order 2015)
Development may also be excepted from the prohibition if it was granted planning permission before 4 July 2023 (which is the day the RAS Regulations came into force).
However, if planning permission was granted before 4 July 2023 but a subsequent application was still required in relation to that permission after 4 July 2023 (for example, a reserved matters application or a prior approval is necessary to carry out development) then the prohibition will apply to the development.
The RAS Regulations also allow the Secretary of State to exempt development which is Critical National Infrastructure from the planning prohibition in the RAS Regulations.
For the purposes of the planning prohibition, Critical National Infrastructure is defined in Regulation 31 of the RAS Regulations.
The relevant local planning authorities will be notified if any exemptions are given for Critical National Infrastructure development for a particular developer.
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How will a local planning authority know if a developer is an applicable person to which a prohibition applies?
The names of prohibited developers will appear on a published list available on the RAS website. This is how we expect local planning authorities to check whether a developer is prohibited. Local planning authorities may contact the Department for Levelling Up, Housing and Communities if they have further queries about whether a prohibition applies to development carried out by a developer on the prohibitions list at: Building.Safety@levellingup.gov.uk.
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What are the notification requirements for developers and how should they be used?
Under regulation 30 of The Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023, a prohibited developer must notify the relevant local planning authority that they are a prohibited developer when:
- they apply for planning permission, or make a subsequent application for, or relating to, major development. This includes reserved matters approval.
- they acquire an interest in land, or a contractual entitlement to develop land, which has the benefit of planning permission for major development; or
- they transfer all their interest in land which has the benefit of such a permission to a person that is not an applicable person.
They must also notify the local planning authority when they cease to be a prohibited developer. This notification must be sent to the local planning authority for the area in which the developer has planning permission for development which would have been prohibited before they ceased to be a prohibited developer.
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Planning enforcement and the planning prohibition: overview
What enforcement powers are available to a local planning authority if a prohibited developer breaches the planning prohibition?
The RAS Regulations apply Part 7 of the Town and Country Planning Act 1990 on enforcement to a breach of the planning prohibition, with modifications. Carrying out development prohibited by the RAS Regulations is a breach of planning control and the local planning authority may take enforcement action.
Many of the modifications to the enforcement powers in the Town and Country Planning Act 1990 (for these purposes) reflect the differences in the nature of the breach of planning control under the RAS Regulations.
A breach of planning control under the RAS regulations is based on who is carrying out the development and whether they are subject to the prohibition under the RAS Regulations, as opposed to whether development has planning permission or development is carried out failing to comply with any condition or limitation on a grant of planning permission.
The modified enforcement powers available to local planning authorities in relation to a breach of planning control under the RAS Regulations are described further in this guidance. Where the enforcement powers are the same as those contained in the Town and Country Planning Act 1990, the Enforcement and Post Permission Matters Planning Practice Guidance (PPG) may also have useful guidance which is not repeated here (though links are provided where relevant). However, it should be read in the context of enforcement action under the RAS Regulations having a different purpose to that taken under the Town and Country Planning Act 1990.
The modified enforcement powers available to local planning authorities include:
- Planning Contravention Notice
- Enforcement Notice
- Stop Notice
- Temporary Stop Notice
Enforcement powers in the Town and Country Planning Act 1990 that can be used under the RAS Regulations but have not been modified for these purposes are:
- Planning Enforcement Order - see existing Enforcement and Post-Permission Matters PPG
- Rights of entry - see existing Enforcement and Post-Permission Matters PPG
- Injunction - see existing Enforcement and Post-Permission Matters PPG
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When should I use the RAS Enforcement PPG and when should I use the Enforcement and Post Permission Matters PPG?
Enforcement action taken under the RAS Regulations is separate and distinct from enforcement action taken under the Town and Country Planning Act 1990, even though some of the provisions may be the same.
Where the provisions are the same, the Enforcement and Post Permission Matters PPG may have useful guidance that is relevant to enforcement action taken under the RAS Regulations. This guidance is not repeated here, but it should be read in the context of enforcement action under the RAS Regulations having a different purpose to that taken under the Town and Country Planning Act 1990.
If there are multiple breaches of planning control on a site that relate to both a breach of planning control under the RAS Regulations and a breach of planning control under the Town and Country Planning Act 1990, then any enforcement action should be taken separately under the respective regime.
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What should a local planning authority do if a developer is not on the prohibitions list?
If a developer is not on the prohibitions list published by the department then the local planning authority should not take enforcement action in respect of a breach of the prohibition under the RAS Regulations.
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What is a breach of planning control under the RAS Regulations?
The carrying out of any material operation (as defined by section 56(4) of the Town and Country Planning Act 1990) in contravention of the prohibition in Regulation 29 of the Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023 is a breach of planning control.
In practice this means that any person prohibited under the Regulations who carries out any major development (for which there is not a relevant exception) will be in breach of planning control.
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When should enforcement action be taken under the RAS Regulations?
Where a prohibited developer breaches planning control under the RAS Regulations by carrying out prohibited development, enforcement action should be considered by the local planning authority.
The local planning authority is able to serve a Planning Contravention Notice, if they suspect there is a breach of planning control under the RAS Regulations, to gain further information from a developer which may help determine whether enforcement action should be taken.
Unlike planning enforcement under the Town and Country Planning Act 1990, regard to the Development Plan and material considerations is not required in the same way when deciding whether to take enforcement action. This is because the purpose of these enforcement powers is to ensure compliance with the prohibition, the purpose of which is:
“(a) securing the safety of people in or about buildings in relation to risks arising from buildings, or
(b) improving the standard of buildings,
including securing that safety, or improving that standard, by securing that persons in the building industry remedy defects in buildings or contribute to costs associated with remedying defects in buildings.”
Building Safety Act 2022 section 128
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What are the time limits for taking enforcement action under the RAS Regulations?
The time limits within which enforcement action can be taken are set out in section 171B (Town and Country Planning Act 1990) and section 171BA (Town and Country Planning Act 1990) of the Town and Country Planning Act 1990 and apply unamended to enforcement action taken under the RAS Regulations. See What are the time limits for taking enforcement action?
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Is enforcement action under the RAS Regulations kept on a public register?
The RAS Regulations set out in Modification of Section 188 (register of enforcement and stop notices) that section 188 of the Town and Country Planning Act 1990 applies to enforcement action taken under the RAS Regulations and therefore relevant enforcement action must be included on the enforcement registers maintained by local planning authorities.
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Planning Contravention Notice
How may a Planning Contravention Notice be used by a local planning authority under the RAS Regulations?
Where there appears to be a breach of planning control under the RAS Regulations, a Planning Contravention Notice may be served under paragraph 3 of the RAS Regulations Schedule (which modifies section 171C of the Town and Country Planning Act 1990). (Section 171C of the Town and Country Planning Act 1990: Town and Country Planning Act 1990 as modified by RAS Regulations Schedule, paragraph 3: The Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023).
This allows the local planning authority to require any information for enforcement purposes about operations being carried out and the use of land. The Planning Contravention Notice can be used to invite the recipient to respond constructively to the local planning authority about how any suspected breach of planning control may be satisfactorily remedied. This may include any information the developer may wish to share that shows they may soon be able to remedy the breach of planning control (e.g. they are imminently about to become a member of the Responsible Actors Scheme). The information that the notice may require also includes any matter relating to that person’s membership of the Responsible Actors Scheme or the application of the prohibition to that person.
The RAS Regulations make amendments to section 171C which mean that such notices may be served on any person who:
- is the owner or occupier of the land or has any other interest in it; or
- appears to the local planning authority to have breached planning control (i.e. the developer to whom the prohibition applies).
Other information about Planning Contravention Notices (under the Town and Country Planning Act 1990) which may be relevant (notably where provisions have not been modified) can be found here: PCNs in Enforcement and Post-Permission Matters PPG
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Enforcement Notice
How may an Enforcement Notice be used by a local planning authority under the RAS Regulations?
Enforcement Notices can be used where it appears to the local planning authority that there is a breach of planning control under the RAS Regulations and that it is expedient to issue the notice. (section 172 of the Town and Country Planning Act 1990: Town and Country Planning Act 1990 as modified by paragraph 7 of the Schedule to the RAS Regulations: The Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023
An Enforcement Notice issued under the RAS Regulations must:
- State the matters which appear to the local planning authority to constitute the breach of planning control (and enables any person on whom it is served to know what those matters are),
- Specify the precise boundaries of the land to which the notice relates, whether by reference to a plan or otherwise,
- Contain a list of the names and addresses of the persons on whom a copy of the enforcement notice has been served,
- Be accompanied by an explanatory note providing information relating to any relevant right of appeal and the grounds on which an appeal may be brought under the RAS Regulations.
An Enforcement Notice under the Regulations shall specify the steps which the authority require to be taken, or the activities which the authority require to cease, in order to achieve compliance with the prohibition. It may also specify any steps required to remedy any injury to amenity which has been caused by the breach of planning control under the RAS Regulations. (section 173 of the Town and Country Planning Act 1990: Town and Country Planning Act 1990 as modified by paragraph 8 of the RAS Regulations: The Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023)
An Enforcement Notice issued under the RAS Regulations ceases to have effect where a person ceases to be a prohibited person/developer (section 180 of the Town and Country Planning Act 1990: Town and Country Planning Act 1990 as modified by paragraph 13 of the Schedule to the RAS Regulations: The Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023)
The Model Notice that can be used for an Enforcement Notice issued under the RAS Regulations is different to the normal model notice used for the purpose of an Enforcement Notice issued under the Town and Country Planning Act 1990, the Model Notice for the RAS Regulations is set out below.
Other information about Enforcement Notices (under the Town and Country Planning Act 1990) which may be relevant (where provisions have not been modified) can be found in the Enforcement and post-permission matters PPG.
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Is there a right of appeal against an Enforcement Notice under the RAS Regulations?
There is a right of appeal against Enforcement Notices served under the RAS Regulations. An appeal may be brought by anyone who has an interest in the land to which the Enforcement Notice relates, or who is a relevant occupier, whether or not they have been served with a copy of the notice. (section 174 of the Town and Country Planning Act 1990: Town and Country Planning Act 1990 as modified by paragraph 9 of the Schedule to the RAS Regulations: The Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023)
An appeal must be made before the Enforcement Notice comes into effect. This date will be on the Enforcement Notice and should be at least 28 days from the date of issue of the Enforcement Notice.
RAS Regulations 14 and 16 set out the process for determining eligibility for the RAS. The Secretary of State cannot make a determination regarding eligibility for the RAS as part of an Enforcement Notice appeal if that question has already been determined in accordance with the procedures in those provisions. (Section 176 of the Town and Country Planning Act 1990 Town and Country Planning Act 1990 as modified by paragraph 11 of the Schedule to the RAS Regulations The Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023)
a. Grounds of Appeal
An appeal against an Enforcement Notice issued under the RAS Regulations can be brought on any of the following grounds:
- that the matters in the Enforcement Notice have not occurred,
- that the matters in the Enforcement Notice (if they occurred) do not constitute a breach of planning control,
- that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters,
- that copies of the Enforcement Notice were not served as required by the RAS Regulations,
- that any period specified in the notice falls short of what should reasonably be allowed.
(section 174 of the Town and Country Planning Act 1990: Town and Country Planning Act 1990 as modified by paragraph 9 to the Schedule to the RAS Regulations: The Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023)
b. Enforcement appeals procedure
The Town and Country Planning (Enforcement Notices and Appeals) (England) Regulations 2002 (“Enforcement Notices and Appeals Regulations”) apply to Enforcement Notice appeals under the RAS Regulations with modifications:
- Part 2 of the Enforcement Notices and Appeals Regulations has been omitted as the additional matters that are specified must be included in an Enforcement Notice in Part 2 are already covered by the modifications to section 173 and 174 made by the RAS Regulations
- Regulation 9(1)(b) of the Enforcement Notices and Appeals Regulations has been omitted as a statement from the local planning authority as to whether they would be prepared to grant planning permission for the matters alleged in the Enforcement Notice to constitute the breach of planning control would not be relevant for a breach of planning control under the RAS Regulations. Regulation 7(4)(b) of the Town and Country Planning (Enforcement) (Written Representations Procedure) (England) Regulations 2002 has also been omitted to account for this.
(Section 175 of the Town and Country Planning Act 1990 Town and Country Planning Act 1990 and the Town and Country Planning (Enforcement Notices and Appeals) (England) Regulations 2002 The Town and Country Planning (Enforcement Notices and Appeals) (England) Regulations 2002 as modified by paragraph 10 of the Schedule to the RAS Regulations The Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023)
The following Regulations and rules apply to enforcement appeals under the RAS Regulations unamended:
- The Town and Country Planning (Enforcement) (Inquiries Procedure) (England) Rules 2002
- The Town and Country Planning (Enforcement) (Determination by inspectors) (Inquiries Procedure) (England) Rules 2002
- The Town and Country Planning (Enforcement) (Hearings Procedure) (England) Rules 2002
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When should I use the RAS Enforcement PPG and Example Explanatory Note and when should I use the Planning Inspectorate’s procedural guidance on making an enforcement appeal?
Much of the Planning Inspectorate’s procedural guidance on making an Enforcement Notice appeal (Procedural Guide: Enforcement notice appeals - England and Making your appeal: How to complete your enforcement notice appeal form) will be relevant to appeals against Enforcement Notices issued under the RAS Regulations, however where elements of the appeal process have been amended by the RAS Regulations, the guidance will not be relevant. For example, detailed information relating to the grounds of appeal will not apply to an appeal against an Enforcement Notice issued under the RAS Regulations as the grounds of appeal have been modified (see question 14).
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Stop Notice
How may a Stop Notice be used by a local planning authority under the RAS Regulations?
A Stop Notice issued under the RAS Regulations may be used in conjunction with an Enforcement Notice to enforce against a breach of planning control under the RAS Regulations, notably to require the carrying out of prohibited development to cease ahead of the deadline for compliance in the associated enforcement notice. (section 183 of the Town and Country Planning Act 1990: Town and Country Planning Act 1990 and paragraph 15 of the Schedule to the RAS Regulations: The Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023).
Stop Notices issued under the Town and Country Planning Act 1990 are subject to certain restrictions, including that they cannot be used to prohibit an activity that has been carried out for a period of more than four years (ending with the service of the notice). This restriction does not apply to Stop Notices issued under the RAS Regulations. However, the restriction that a Stop Notice may not prohibit the use of any building as a dwellinghouse does apply.
(section 183 of the Town and Country Planning Act 1990: Town and Country Planning Act 1990 and paragraph 15 of the Schedule to the RAS Regulations: The Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023).
Modifications have also been made to the compensation provisions in s.186 of the Town and Country Planning Act 1990 so that Stop Notices served under the RAS Regulations may result in compensation being payable where the associated Enforcement Notice is withdrawn or varied so that any activity which is prohibited by the Stop Notice ceases to be a relevant activity. Compensation may also be payable where the Stop Notice is withdrawn. When compensation is not payable remains the same as action taken under the Town and Country Planning Act 1990.
The Model Notice that can be used for a Stop Notice issued under the RAS Regulations is different to the normal model notice used for the purpose of enforcement action taken under the Town and Country Planning Act 1990, the Model Notice for the RAS Regulations is set out below
Further guidance on Stop Notices under the Town and Country Planning Act 1990, (notably where provisions have not been modified) can be found in the relevant section of the Enforcement and Post Permission Matters Planning Practice Guidance.
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Temporary Stop Notice
How may a Temporary Stop Notice be used by a local planning authority under the RAS Regulations?
Temporary Stop Notices are a powerful enforcement tool that allow local planning authorities to act very quickly to address some breaches of planning control. For the purpose of the RAS Regulations, a Temporary Stop Notice may be used to prevent prohibited development immediately where the local planning authority thinks that there is a breach of planning control, while other enforcement action is considered.
Further guidance on Temporary Stop Notices under the Town and Country Planning Act 1990 that may be helpful (where provisions have not been modified) can be found in the relevant section of the Enforcement and Post Permission Matters Planning Practice Guidance.
Temporary Stop Notices issued under the Town and Country Planning Act 1990 are subject to certain restrictions, including that they cannot be used to prohibit an activity that has been carried out for a period of more than four years (ending with the service of the notice). This restriction does not apply to Temporary Stop Notices issued under the RAS Regulations. However, the restriction that a Temporary Stop Notice may not prohibit the use of any building as a dwellinghouse does apply.
(Section 171F of the Town and Country Planning Act 1990: Town and Country Planning Act 1990 and paragraph 5 of the Schedule to the RAS Regulations: The Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023)
Modifications have been made to the compensation provisions of section 171H of the Town and Country Planning Act 1990 so that an affected person is only entitled to compensation if a Temporary Stop Notice is withdrawn, or it is determined there is not a breach of planning control under the RAS Regulations. No compensation is payable if a developer only becomes a member of the RAS after the notice is issued- even if their membership is treated as having retrospective effect. (s171H of the Town and Country Planning Act 1990: Town and Country Planning Act 1990 as modified by paragraph 6 of the Schedule to the RAS Regulations: The Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023)
The Model Notice that can be used for a Temporary Stop Notice issued under the RAS Regulations is also different to the normal model notice used for the purpose of enforcement action taken under the Town and Country Planning Act 1990, the Model Notice for the RAS Regulations is set out below
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Offences
What happens if a prohibited developer fails to comply with enforcement action under the RAS Regulations?
The same offences apply as under the Town and Country Planning Act 1990 for non-compliance where enforcement action is taken under the RAS Regulations. In respect of some types of enforcement action, a person guilty of an offence is liable on conviction to an unlimited fine. For more information on these offences see the Enforcement and Post Permission Matters PPG.
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New Model Notices
New Model Notices
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Last updated 25 April 2024 + show all updates
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Guidance updated to reflect the enforcement reforms introduced through the Levelling-up and Regeneration Act 2023 which came into effect on 25 April 2024.
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First published.