Friday, 11 February 2011
Concealed development - the hidden trap in the Localism Bill
I don’t usually quote verbatim from press releases, but the Law Society has recently published an important statement with which I concur so strongly that I think it worth repeating here.
In this blog on 21 December I drew attention to Clause 104 of the Localism Bill, which seeks to deal with ‘concealed development’. I pointed out the potentially wide-ranging effect of this change, which could have serious unforeseen and unintended consequences.
The Law Society is quite rightly warning that this clause could bring uncertainty and chaos to the property market. As you will recall from my earlier posting on this topic, the clause would allow local planning authorities to seek a ‘planning enforcement order’ at any time after it becomes aware that there has been a breach of planning control which it alleges has been ‘concealed’. This will then enable it to issue an enforcement notice, even if the normal 4-year or 10-year time limit has long since expired.
Law Society President Linda Lee points out that the new regime could create uncertainty for the buyers of both residential and commercial property when they cannot establish whether previous owners have concealed a breach of planning control, with the result that they themselves could become liable to enforcement action for that breach at any point in the future. If the buyer discovers a concealed breach and then fails to report it, they will be concealing it themselves.
She points out that this proposed change could have a serious effect on both the residential and commercial property markets, where innocent purchasers could become liable for the actions of a previous owner. This could lead to purchasers demanding that every breach of planning control is remedied or that the price is abated for the risk. It could also delay transactions while enquiries are being made about the planning status of a property. It increases the level of due diligence buyers would need to do, as there will no longer be a cut-off date. This could involve buyers incurring considerable expense. It could even necessitate taking out insurance against any unknown potential liability.
While aimed at the fraudulent and blatant cheats, the provisions are drawn so widely that they will catch anything which has not been expressly pointed out to the planning authority. The new provision is unnecessary – the two cases which have led to these proposals are highly unusual and bizarre. [This is a reference to the Welwyn-Hatfield and Fidler cases, which have been the subject of previous posts on this blog, and both of which are still before the courts].
I fully endorse what the President of the Law Society has said. I hope that common sense will prevail and that ministers will withdraw this clause. They may be tempted to have a go at drafting something less draconian in its effect, but as Linda Lee has pointed out, it is in any event a sledge-hammer to crack a nut, and the government is over-reacting to the two cases mentioned above.
© MARTIN H GOODALL