Tuesday, 14 June 2011

Localism Bill – enforcement problems

I commented some months ago on the enforcement provisions in the Localism Bill, but I am prompted to return to the topic by a helpful briefing note prepared by the Law Society for use in connection with the consideration of the Bill by the Lords. This is very much in line with my own criticisms of these clauses in the Bill.

The Law Society proposes the deletion of subsection (4) in Clause 108 (originally Clause 104), so as to preserve the right for a person to appeal against a planning enforcement notice on the grounds that planning permission ought to be granted. Clause 108(4) amends section 174 of the 1990 Act to provide that if a retrospective planning application has been made but an enforcement notice has been issued before the time for making a decision has expired, the developer cannot then appeal against the enforcement notice on ground (a) that planning permission ought to be granted. The Society considers this amendment to be unnecessary as the enforcement system is working satisfactorily and does not need changing. At present a retrospective planning application and an enforcement appeal can be dealt with at the same hearing. The change could give rise to additional costs both for local authorities and the private sector, it could give rise to unnecessary litigation and it will cause uncertainty in the property markets.

I could never see the point of this proposal in the Bill, and I hope the Lords will agree with the Law Society that Clause 108(4) would best be deleted from the Bill.

The clause in the Bill which causes me the greatest concern is Clause 109 (originally Clause 104). The Law Society proposes that this clause should be deleted in its entirety. This clause has the effect of removing the limitation periods for the enforcement of planning control, which are currently four years for most operations (and also for a change of use to use as a single private dwelling) and ten years for other changes of use and for breaches of condition. The clause would allow local planning authorities to enforce outside the limitation periods where there is a concealed breach of planning control, but the definition of ‘concealment’ (which expressly includes inaction) will effectively apply to almost any breach of planning control of which the local planning authority was unaware. Thus, unless the person committing the breach of planning control actually reports the breach to the authority themselves, their failure to do so would amount to ‘concealment’.

I predicted that some ill-thought out legislative amendment would be proposed in face of the two notorious planning enforcement cases which have been going through the courts over the past couple of years – Fidler and Welwyn Hatfield (Beesley). But these are very rare and unusual cases, and as Lord Brown suggested in giving judgment in the Supreme Court in the Welwyn Hatfield case, legislation is not even required to deal with cases as extreme as these, because they are already well covered by the Connor principle, which would prevent a developer claiming the benefit of their own wrong-doing in this way.

The real objection to Clause 109 is that it would effectively remove the limitation period for planning enforcement action altogether, even where the breach of planning control had been inadvertent or where the property had been sold on many years later to an entirely innocent purchaser who was unaware of the breach of planning control. The uncertainty this would create would cause immense problems, as it becomes increasingly difficult with the passage of time to be certain as to what was done and whether it was lawful at the time or not. It was precisely for this reason that the 4-year rule and 10-year rule were introduced in the first place. Arguably, a single limitation period (say 6 years) would be an even better solution, thus removing the difficulties and uncertainties which already surround the question as to whether it is the 4-year rule or the 10-year rule which applies in certain marginal cases.

As Lord Brown suggested, in light of the Supreme Court decision in Welwyn Hatfield, parliament can safely leave it to decision-makers, backed up by Planning Inspectors and by the Courts to apply the Connor principle in cases where a developer has behaved in the manner of Mr Fidler or Mr Beesley. This problem, such as it is, does not need heavy-handed legislation in order to tackle it.


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