Tuesday, 21 December 2010

Localism Bill – Enforcement provisions (3)


'CONCEALED' DEVELOPMENT

Resuming our leisurely stroll through the Bill, Clause 104 will insert three additional sections in the 1990 Act after Section 171B so as to provide extended time limits “for enforcing concealed breaches of planning control” [sic]. These three new sections introduce a complex and cumbersome procedure involving an application by the LPA to the magistrates’ court for a ‘planning enforcement order’.

This really is an appallingly convoluted piece of drafting. You won’t actually find a reference to concealment until you get to section 171BC. Having gone through all the procedural rigmarole and tortuous definitions in sections 171BA and 171BB (to which I shall return below), this section provides that a magistrates’ court may make a planning enforcement order in relation to an apparent breach of planning control only if the court is satisfied, on the balance of probabilities, that the actions of a person or persons have resulted in, or contributed to, full or partial concealment of the apparent breach of planning control or any of the matters constituting the apparent breach. What constitutes ‘concealment’ is not defined, and this is likely to be a fruitful area for legal challenges, especially where there is a dispute between the LPA and the developer as to whether there has actually been concealment as such (as distinct from a mere failure on the part of the LPA or others to notice the development), and whether or not this was due to someone’s actions. On the latter point, a person’s actions are to be taken to include representations made by the person, and inaction on the person’s part. The last of these would appear to be grossly unjust, and is likely to be the source of potentially serious difficulty.

Under section 171BA, a ‘planning enforcement order’ when issued by a magistrates’ court will give the LPA a year (which starts at the end of 22 days beginning with the day on which the court’s decision to make the order is given, unless an application is made to the magistrates to state a case for the opinion of the High Court, in which case it starts with the day on which those proceedings are finally determined or withdrawn) within which they can take enforcement action. So it simply extends the time in which an enforcement notice (or a breach of condition notice) can be served, even if the development would otherwise be or become immune under the 4-year rule or the 10-year rule.

Incidentally, there does not actually have to have been a breach of planning control. The LPA can apply to the magistrates where it simply ‘appears’ to them that there ‘may have been’ a breach of planning control. The issue of whether or not there has indeed been a breach of planning control will be a matter for the section 174 appeal.

Section 171BB deals with the procedure to be followed in connection with planning enforcement orders. An application for a planning enforcement order in relation to an apparent breach of planning control may be made within the 6 months beginning with the date on which evidence of the apparent breach of planning control sufficient in the opinion of the LPA to justify the application came to the authority’s knowledge. There will be no scope for disputes on this point; a certificate signed on behalf of the LPA, and stating the date on which evidence sufficient in the authority’s opinion to justify the application came to the authority’s knowledge, will be conclusive evidence of that fact. Furthermore, a certificate stating that matter and purporting to be so signed is to be deemed to be so signed unless the contrary is proved.

The LPA will be required to serve a copy of the application for an order on the owner and on the occupier of the land, and on any other person having an interest in the land which in the opinion of the authority would be materially affected by the taking of enforcement action in respect of the apparent breach. The persons entitled to appear before, and be heard by, the magistrates’ court will include the LPA, any person on whom a copy of the application was served and any other person having an interest in the land which, in the opinion of the court, would be materially affected by the taking of enforcement action in respect of the apparent breach.

Finally, section 171BC deals with the magistrates’ powers to make a planning enforcement order. As we have already seen, this is dependent on the court’s being satisfied that there has been concealment (as explained above), and they must also consider it just to make the order having regard to all the circumstances. The planning enforcement order when made must identify the apparent breach of planning control to which it relates, and state the date on which the court’s decision to make the order was given.

There are some consequential amendments to other sections of the 1990 Act. The most important of these concerns section 191 (relating to certificates of lawfulness of existing use or development). In future, in determining whether the time for taking enforcement action in respect of a matter has expired, that time is to be taken as not having expired if the time for applying for a planning enforcement order in relation to the matter has not expired, and an application has in fact been made for a planning enforcement order but has not been decided nor been withdrawn, or a planning enforcement order has been made in relation to the matter, the order has not been rescinded and the one year period of the order (whether or not it has begun) has not expired.

There’s more to come on enforcement, so look out for the next posting on this subject.

© MARTIN H GOODALL

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