Interview under caution by planning enforcement

 

An interview under caution is the point where a planning problem stops being about paperwork and starts being about a criminal offence. The council is no longer asking whether something was built without permission. It is asking whether you broke the law, and it is gathering evidence it may use to prosecute you.

Most people are invited in by letter and go along voluntarily. You are not arrested, you are not held anywhere, and you can walk out whenever you like. That relaxed setting hides how serious the meeting is.

The biggest mistake people make is assuming that saying nothing is safe. In a planning enforcement interview it usually is not. If you keep quiet about something and then rely on it later in court, the court is allowed to hold that against you. Most readers believe the opposite, which is why this page exists.

This page covers England and Wales. The rules come from the Police and Criminal Evidence Act 1984 and the code of practice issued under it, known as Code C, together with the law on silence in the Criminal Justice and Public Order Act 1994. It sits inside our wider guide to planning enforcement and follows on from how a planning enforcement investigation works.

Whilst we are happy to give you some help via this page, it is often easier to consult a professional. If in doubt – STOP – and reach out to us. We are here to help. Contact us here. 

 

What an interview under caution actually is

 

An interview under caution is questioning about whether you were involved in a criminal offence, carried out after you have been given a formal warning about your rights. That warning is the caution.

Two things have to be true before questioning counts as an interview. The council has to have grounds to suspect you of an offence, and what you say or do not say has to be capable of being given in evidence in a prosecution. Once both are true, you have to be cautioned before you are asked about the offence.

The planning offences sitting behind this are usually one of these:

• not doing what an enforcement notice told you to do
• giving false information, or holding information back, in reply to a formal notice
• unauthorised work to a listed building
• carrying on with work after a stop notice or a temporary stop notice

An interview under caution is not a friendly chat about how to put things right. If the council wanted to sort the problem out informally, it would not be cautioning you.

 

Answering a notice is not an interview

 

Councils have notices that force you to give them information. The main two are a planning contravention notice and a section 330 notice. Ignoring either one is a criminal offence.

People assume that because those notices are that serious, the council must have to caution them first. It does not, and the reason is worth following through step by step.

The code says no caution is needed where questions are asked to obtain information under a statutory requirement. Those two notices are exactly that. The code then defines an interview as questioning that has to be carried out under caution. Put the two together and the answer falls out: filling in one of those notices is not an interview, and no caution attaches to it.

So the letter that lands on your doormat with a list of questions is not an interview under caution, however much it feels like one. The interview, if there is one, comes later.

 

You can be required to answer, but admissibility is a separate question

 

This is the hard edge of planning enforcement, and it deserves saying plainly rather than politely.

A planning contravention notice or section 330 notice is a statutory information requirement, not an interview under caution. Failing to provide the information required can itself be an offence, so this is not the same as choosing whether to answer questions in a voluntary suspect interview.

That does not mean every compelled answer is automatically admissible in a later prosecution about the underlying conduct. The House of Lords considered the same principle in R v Hertfordshire County Council, ex parte Green Environmental Industries Ltd [2000] 2 AC 412. It held that a statutory information power could require potentially incriminating factual information, while making clear that the criminal trial judge retains a discretion under section 78 of the Police and Criminal Evidence Act 1984 to exclude answers, or evidence found as a result of them, where admitting it would have an unduly adverse effect on the fairness of the proceedings.

The practical point is therefore more nuanced than either “you can stay silent” or “everything you write will be used against you”. You must deal with the statutory notice, but if the answers may expose you to criminal liability, get legal advice before replying. The obligation to answer and the later admissibility of the answer are separate questions.

Our page on the section 330 notice sets out the time limit and what a reply has to contain. If the dates of a use are what decides whether the council can still enforce, get advice before you write the reply rather than after.

 

The caution, and the one sentence that matters

 

There are two versions of the caution, and the difference between them is a single sentence. That sentence is the whole point of this page.

The ordinary caution is:

You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence.

The restricted version, used only in limited circumstances, drops the middle sentence. It says only that you do not have to say anything, but that anything you do say may be given in evidence.

That middle sentence is the one that costs money. It means a court is allowed to treat your silence as supporting the case against you, where you later rely on something you could reasonably have mentioned at the time. Listen for it. If you hear it, silence carries a price.

 

Why your silence can count against you

 

Most people walk into a council interview believing that staying silent is a free right and that nothing can be read into it. In planning enforcement that is usually wrong, and there are two reasons why.

The first is about where you are. The protection against having silence used against you is aimed at someone asking for a solicitor while being held at a police station and not being allowed to see one. The reasoning is simple: if nobody is holding you, nobody is stopping you getting legal advice, so you do not need protecting. A planning enforcement interview is almost never like that. Council enforcement officers do not detain people. You are asked to attend, you turn up, and you are free to leave. So the protection usually does not apply, and the ordinary caution governs, middle sentence and all.

The second is about who is asking. The law on silence is written around questioning by a police constable, which makes people think it cannot reach a council officer. It says in terms that it applies in the same way to questioning by people other than constables whose job is investigating offences. A council enforcement officer is squarely inside that. You do not escape the rules on silence by being interviewed at the civic centre instead of a police station.

One point is genuinely unsettled and we will not pretend otherwise. The restriction can also reach someone who has been told they may be prosecuted. If the council has already written to you saying prosecution is being considered, it is arguable that you should get the restricted caution instead. We have not seen that tested against a planning authority, and the law on silence expressly covers a person officially informed that they might be prosecuted, which pulls the other way. If that is your situation, take advice on it rather than relying on this page.

 

Is the council bound by the PACE code?

 

This gets stated far too confidently on both sides, so here is what the law actually says.

Code C is written for police officers and for people held at a police station. It talks about custody officers, detention and constables throughout. A council enforcement officer is none of those things.

What the law does say is that people other than police officers whose job is investigating offences must have regard to the relevant parts of a code when carrying out that job. Have regard to is not the same as comply with, and the same section spells out the difference: failing to have regard to a code does not by itself make the officer liable to any criminal or civil proceedings.

That is not the end of it, and this next part is the bit that matters to you. A code is admissible in evidence in any criminal case, and where part of it is relevant to a question the court has to decide, the court has to take it into account. So an officer who cuts corners commits no offence by doing so, but how the interview was run can be put in front of the court, and the court has to weigh it.

Government guidance to councils tells them to have regard to the PACE rules on cautioning. That matches the law rather than going beyond it. Anyone who tells you the code simply binds a council is going further than the statute does.

 

What you should be told before it starts

 

Before an interview, you and anyone advising you have to be given enough information to understand the nature of the offence and why you are suspected of it. The point is that you can actually defend yourself rather than guess.

It does not entitle you to the whole file. The officer decides what to disclose and can hold things back where telling you early would damage the investigation. What the officer cannot do is keep it vague and then lean on your silence. The officer also has to record what was disclosed and when.

If you turn up and still cannot work out what you are accused of, say so, and ask for it to be recorded that you asked.

 

What happens if you will not answer

 

Refusing to answer questions in an interview is not an offence. Nobody can fine you for saying no comment and nobody can make you speak.

What it does do is expose you to the point above. Say nothing, then at trial rely on an explanation you could have given at the time, and the court can be invited to ask why you did not mention it.

There is a middle route that solicitors use a great deal, which is a prepared written statement. You hand in a short statement setting out the facts you rely on and then answer no further questions. It puts your account on the record at the right moment while keeping you out of a long unprepared conversation. It is not a magic shield and it needs drafting properly, but it usually beats either extreme.

Refusing to answer a formal notice is a completely different thing, and that is an offence. Do not confuse the two.

 

Should you take a solicitor?

 

Yes, if you possibly can. This is the one stage of enforcement where the council is building a criminal case against you, and it is the point at which what you say is hardest to take back.

A solicitor does two things that matter here. They read what the council has disclosed and tell you what it actually has, which is often a good deal less than the letter implies. And if you do stay silent on their advice, the fact that you were advised to do so is something a court can be told about, which can affect how your silence is treated.

Do not assume a solicitor will be laid on for you the way one is at a police station. Ask the council in advance who will be present, and if the answer is nobody on your side, arrange your own.

 

Do you have to go to an interview under caution?

 

Usually, no. If you have been invited to attend voluntarily you can decline, and there is no offence of refusing to be interviewed.

Whether you should decline is a different question, and the honest answer is that it depends on what you have to say.

If there is a straightforward explanation, or dates that put the breach beyond the reach of enforcement, or paperwork showing the work was permitted development, then an interview is your cheapest chance to put that in front of the council before anyone spends money on a prosecution. Cases do get dropped at this stage.

If the position is genuinely bad, walking in and talking your way through it unprepared is how people hand over the evidence that convicts them. Get advice first, decide what you are going to do, and then decide whether to attend.

What refusing does not do is make the problem go away. The council can still prosecute, can still serve notices, and can still use whatever you have already written on a notice reply.

 

Is there a cost?

 

The interview itself is free. There is no fee for attending and no fee for declining.

The cost sits either side of it. Legal advice is the obvious one, and it is money well spent at this stage. If it ends in a prosecution, a conviction brings a fine and usually an order to pay the council’s costs, and for the more serious planning offences the fine is unlimited.

If the way out is to apply for permission after the event, or for a certificate of lawfulness, those carry application fees. Our planning fees page explains how the charges are worked out and what they depend on.

One trap is worth flagging. Fixing a breach by applying for permission after the event can bring a community infrastructure levy charge with it, and without the reliefs you would otherwise have had. Work out the whole cost before you decide how to put things right, not after.

 

What if it leads to a prosecution?

 

There is no appeal against being investigated, and none against being interviewed. Neither is a decision, so there is nothing to appeal against. The same goes for the notices that led up to it: you cannot appeal a planning contravention notice or a section 330 notice. The only route against those is judicial review, which challenges the way the council behaved rather than the planning merits, and which has very short deadlines.

If you are prosecuted, the argument moves to the magistrates’ court, and that is where the interview comes back. Anything you said, and in the right circumstances anything you did not say, becomes part of the case. Our page on what happens if you ignore an enforcement notice covers how that prosecution works.

Planning appeals sit on a separate track. If there is an enforcement notice behind all this, that notice can be appealed and appealing suspends it. Our page on enforcement notices and how to appeal covers the deadline, and the enforcement appeal grounds works through which arguments are open to you. For an ordinary refusal of permission, see our guide to planning appeals.

The two tracks run separately and the outcome of one does not automatically settle the other. Take advice on both together rather than one at a time.

Interview under caution relevant legislation

Code C is a code of practice issued under the Police and Criminal Evidence Act 1984. It is not an Act, so it is published by the Home Office rather than on the legislation website. The provisions below are the statutory framework around it. Check the “Changes to Legislation” panel at the top of each page before relying on the wording.

Section 67(9) of the Police and Criminal Evidence Act 1984 reads:

Persons other than police officers who are charged with the duty of investigating offences or charging offenders shall in the discharge of that duty have regard to any relevant provision of a code.

Section 34(4) of the Criminal Justice and Public Order Act 1994 reads:

This section applies in relation to questioning by persons (other than constables) charged with the duty of investigating offences or charging offenders as it applies in relation to questioning by constables; and in subsection (1) above “officially informed” means informed by a constable or any such person.

• PACE Code C: the code of practice on detention, treatment and questioning, including the wording of both cautions
• Police and Criminal Evidence Act 1984, s66: the power under which the codes of practice, including Code C, are issued
• Police and Criminal Evidence Act 1984, s67: the duty on investigators who are not police officers to have regard to a code at subsection (9), the absence of liability for failing to at subsection (10), and the admissibility of a code in court at subsection (11)
• Criminal Justice and Public Order Act 1994, s34: inferences from a failure to mention a fact later relied on, extended to investigators who are not constables by subsection (4)
• Town and Country Planning Act 1990, s171C: the planning contravention notice and the power to require information
• Town and Country Planning Act 1990, s171D: the offences of failing to reply to a planning contravention notice and of giving false information
• Town and Country Planning Act 1990, s330: the power to require information about interests in land, and the offences attached to it
• Town and Country Planning Act 1990, s179: the offence of failing to comply with an enforcement notice

Other Enforcement Sections

 

 

 

Interview under caution Page Updated: 22nd August 2026