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By Scott Stemp of http://planningblog.org/

Feb 21, 2011

Or perhaps this post might be titled with another famous line - "Here Be Beasties!" - for nestled within the murky and less-charted depths of the Localism Bill lurks clause 104, which threatens those who approach it unawares and unguarded.

Readers will be (wearily) familiar with s171B of the Town and Country Planning Act 1990 and the time limits it brings to enforcement action. On the face of it, clause 104 of the Localism Bill seeks to be the Domestos of the planning world and kill all known unauthorised developments dead (well, 99.99% of them, anyway).

As previously noted, the Courts have noted that allowing developers who are successful in deceiving Local Planning Authorities to profit from their dishonesty is a "surprising outcome which law-abiding citizens will find incomprehensible" (see Welwyn Hatfield BC v SoS for C&LG [2010] EWCA Civ 26 per Mummery LJ at 38). The response by Government is to allow LPAs to obtain an extension of time beyond that normally permitted by s171B in "cases involving concealment" (proposed subtitle of proposed s171BA).

We are all familiar with the trite observation that "hard cases make bad law" and in my view the contents of clause 104 are a shining example of this maxim in full operation.

The proposed s171BB(1) allows LPAs to apply for a "Planning Enforcement Order" ('PEO') within six months of their (self-)certifying the date on which the LPA had sufficient knowledge of evidence of breach of planning controls to justify making an application. Some planning commentators have expressed concern as to whether this is compliant with rights conveyed under the European Convention. I think they are wrong. Those of us with more experience in criminal matters are well-used to this kind of time-extension provision - it is long-used, tried and tested in many other arenas (for example benefit fraud prosecutions). I see no problem per se with this provision and no criminal court has yet had a problem enforcing identical provisions in other legislation.

Obtaining a PEO gives an LPA one year and 22 days from the date of the PEO to undertake enforcement action. And here starteth the problems...

Although the subtitle of s171BA informs us that PEOs are in cases involving concealment, the current wording of the proposed s171BC is so wide that is catches any situation where there has been any concealment. IT IS NOT LIMITED TO CASES OF DECEPTION OR DISHONESTY. IT IS NOT LIMITED TO CASES OF DELIBERATE CONCEALMENT.

The problem might be poor thinking on the part of those putting forward these proposals. It seems to me that lack of clarity in thought has allowed the confusion of physical acts and mental states. What do I mean?

To conceal something is to hide it, to keep it from sight or detection. But the fact that I conceal something says nothing about my mental state when I conceal the thing. I might deliberately conceal my dwelling behind bales of hay, intending that no-one ever finds my house and divert any enquiries from Enforcement Officers. In this case I am deceptive and dishonest in my concealment. Here, under the new regime, the LPA could (and probably should) use their new powers to obtain a PEO and enforce against me because I am being deliberately dishonest.

But what about the granny annex of my house which has, over a number of years, gradually become used as a distinct dwelling in its own right? The people who have lived there have registered on the Electoral Roll, they pay their Council Tax etc. I've no reason to tell the LPA that the annex is now a single dwelling in its own right. I've taken no deceptive or dishonest step but could easily be said to have at least partially contributed to the concealing of the 'new' single dwelling by my omission to tell the LPA about it. Should an LPA that has taken no steps at all be able to seek to obtain a PEO and extend enforcement time limits against me? Under s171BC as it is currently drafted they could.

What about time limits on seeking a PEO? There aren't any. Twenty years after the expiry of 'normal' s171B enforcement time limits? No problem. A PEO would still be available. Thirty years? Forty? Fifty? No problem - there is no time bar. To infinity and beyond!

What effect would this have on the property market? Or conveyancing? What about professional indemnity insurance for conveyancers? How would you feel about buying a property only to discover that shortly after completing your purchase the LPA start proceedings to obtain a PEO about historic breaches of planning control that occurred thirty years ago? Might you want to sue your conveyancer for not warning about this? A buoyant property market is dependent upon many things, one of which is a degree of certainty about your likely liabilities on taking on any given piece of land.

And there seems to be no limit on the number of times an LPA might seek a PEO in relation to any given unauthorised development. Just because an LPA tries to obtain a PEO and fails, there is no bar to them trying again. Nor is there any bar on an LPA obtaining a second PEO if they obtain one and it lapses.

"Ah" you might say "but there's a control on the issue of PEOs - the Magistrates' Court must be satisfied on the balance of probabilities that the making of a PEO would be just in all the circumstances - see s171BC(1)(b)." Well, yes. But in my humble opinion such a control does precisely nothing to introduce any degree of certainty into planning enforcement, which was really rather the point of introducing s171B in the first place.

And would you want to (or even be able to) finance litigation to defend such an application by the LPA? Paying for hours (or even days) of hearing evidence and legal submissions to decide if the LPA can start taking enforcement action? (which you'll pay for the privilege of contesting and/or complying with too). And that's assuming that it's just the LPA against one owner. Imagine a site with multiple owners and/or occupiers, all of whom are entitled to be heard on a PEO application. That's not a short (or cheap) hearing to decide if enforcement action can be taken.

I haven't even started on the possibilities of judicial review of the Magistrates' decision to issue (or not issue) the PEO, or the decision of the LPA to even seek a PEO...

So, clause 104 as it stands is likely to effectively completely remove enforcement time limits in large numbers of cases, catch people who make inadvertent mistakes, allow LPAs that take no steps to investigate or uncover breaches of planning control to escape the consequences of their failures, may adversely impact the property market, increase conveyancer's potential liability and insurance premiums, increases the potential enforcement exposure of property purchasers and introduces another contested court hearing in the process of enforcement with at least two additional attendant possibilities of judicial review and all of the costs implications that follow with it.

Brilliant. Absolutely brilliant. I can't imagine anyone who could have any problems with any of this.

Scott

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