Concealed Development – transitional provisions

I did not wish to lengthen an already rather long post yesterday by including details of the transitional provisions applying to the introduction of the new provisions set out in sections 171BA to 171BC of the 1990 Act. However, I appreciate that there may well be some concern as to how the new provisions may affect allegedly concealed development which had already acquired immunity under the 4-year rule or the 10-year rule (whichever is applicable). Could these developments be caught by the new provisions? The short answer is ‘No’. [If you want the chapter and verse, it can be found in Article 13(3) of the Localism Act 2011 (Commencement No.4 and Transitional, Transitory and Saving Provisions) Order 2012.]

If immunity from enforcement was acquired under either the 4-year rule or the 10-year rule before 6 April 2012, then the provisions of sections 171BA to 171BC will not apply to that development. This means that if an unauthorised building was substantially completed no later than 5 April 2008 or if a change of use of an existing building to use as a single private dwelling took place no later than that date, and its use as a dwelling has been continuous since that change of use, then a local planning authority will not be able to seek an order from the magistrates court enabling them to serve an enforcement notice outside the 4-year period. Similarly, if there was some other material change of use of a building or land which took place no later than 5 April 2002, and the use has been continuous since the change of use was made, the new statutory provisions regarding deliberately concealed development cannot be invoked. The same applies to any breach of condition which occurred before 6 April 2002 which has continued without a break since then.

It should be borne in mind that even though a local planning authority would not be able to invoke the new statutory provisions in these circumstances, the Connor principle might nevertheless apply, and the LPA could still serve an enforcement notice outside the 4-year or 10-year period on that basis, without resort to the magistrates court, but they would then have to show in any subsequent section 174 appeal that the developer’s conduct was so obviously fraudulent or deceitful as to engage the Connor principle. The conduct in question would have to be broadly similar to the conduct of the appellants in Welwyn Hatfield and in Fidler.

© MARTIN H GOODALL