Monday, 15 August 2011

Localism Bill – Lords debate Part 5

Pressures on my time have prevented my reporting previously on the House of Lords’ debate in committee on Part 5 of the Localism Bill. As I mentioned on 13 July, their lordships reached this part of the Bill on 12 July, and they continued their debate on the planning provisions in the Bill on 14, 19 and 20 July.

I do not propose to comment on the debate on the Duty to Co-operate (Clause 95), Neighbourhood Planning (Schedules 9 and 10 and Clauses 100 and 101), nor the provisions regarding the IPC (Schedule 13) and the Financial Considerations clause (Clause 124). These will all no doubt be re-visited at the Report stage in September.

The clauses which continue to be of particular concern to me as a planning lawyer are (what were at the time) Clauses 108 to 111, dealing with various enforcement issues. In the event, there was no debate on Clause 108, which deals with applications for retrospective planning permission. Nor was Clause 110 debated, dealing with planning offences: time limits and penalties. This is regrettable as these are potentially damaging clauses. What was then Clause 109 [now Clause 112] is even more problematic, and this did at least get an airing. This is the ‘concealed development’ clause.

In common with the Law Society’s Planning & Environmental Law Committee, and also Lord Brown in his judgment on the Welwyn Hatfield case in the Supreme Court, I do not accept that amending legislation is required. There is absolutely no need for this clause in the Localism Bill, which is intended to amend the 1990 Act by inserting three new subsections (171BA, 171BB, and 171BC) expressly to deal with issues of concealment. The Connor principle is available in cases of this sort, where a developer sets out deliberately and dishonestly to mislead a planning authority. In such cases the law is already capable of preventing the developer from benefitting from their dishonesty in such circumstances (as did happen in the Welwyn Hatfield case), although such cases are, and are likely to remain, extremely rare.

The Law Society was partially successful in persuading the government to introduce amendments to this clause during the House of Lords committee stage. The first of these amendments removes the bizarre concept of ‘concealment by inaction’, much to the relief of anyone who would have had to advise owners and purchasers of property in the event that this provision had ever come into effect as originally proposed.

The second amendment introduces a cumbersome and hardly satisfactory rigmarole, whereby a local planning authority, having used its powers to take enforcement action against ‘concealed’ development beyond the time limit which would normally have applied, can then send a letter to a subsequent owner of the property to assure them that they will not be prosecuted for non-compliance with the enforcement notice (or breach of condition notice). This appears, however, to be entirely at the discretion of the authority. Besides being a weird way of going about things, it is still completely unsatisfactory from the point of view of anyone buying the property with no knowledge of the previous breach of planning control. I really must resist the temptation to over-use the Alice in Wonderland analogy, but this amendment really does look like something dreamed up by the Mad Hatter!

The Law Society is still lobbying the government about this clause, and it is to be hoped that ministers will see the impossibility of ‘improving’ the clause to meet the strong criticism which it has rightly attracted. The only sensible course is to drop Clause 112 entirely, and to rely on the Connor doctrine, as applied by the Supreme Court in Welwyn Hatfield.

If this is too much for the government to swallow, then what is needed is a clause whereby the power to take enforcement action out of time in respect of deliberately concealed development is strictly confined to a period during which the person who committed the breach of planning control remains in possession or control of the property. A person who acquires the property after the expiry of the 4-year or 10-year period (whichever is applicable) should be able to take it free of the risk that some allegedly concealed development might subsequently become the subject of enforcement action. The cumbersome business of letters of assurance would then be entirely unnecessary. Relying on the good grace of the LPA in this way would in any event be a completely inadequate form of protection for an innocent purchaser and is unacceptable from that point of view, quite apart from the shear silliness of such a procedure.

I fervently hope that the further efforts of the Law Society to make the government see sense on this issue will bear fruit.


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