The Localism Bill and changes to the Planning Enforcement Regime

Jane Ferguson
Jane Ferguson

The Localism Bill introduces significant changes to the time limits for enforcement action by Local Planning Authorities and the immunity periods for application for lawful use certificates. These changes will introduce uncertainty for landowners about the lawfulness of breaches of planning control which they had assumed were immune from enforcement action.

At present a planning authority cannot take action in respect of the erection of a building or change of use to a dwelling once four years have elapsed since the building was erected or first occupied. The authority has a ten year time limit to take action in respect of any other change of use or breach of condition. After these periods a landowner can apply for a certificate that the development is lawful and this has the same effect as an unconditional planning permission. These clear time limits provide certainty for owners and the public about when a breach of planning control is immune from enforcement action.

The objective behind the changes in the Localism Bill is to allow an extended period for an authority to take enforcement action in respect of breaches of planning control which have been concealed from it. The issue of landowners hiding breaches until the time limits for enforcement by the local authority had expired was brought to public attention through the recent case of Mr Beesley who, in the words of Lord Brown in the Supreme Court, built ’a three bedroomed house masquerading as a hay barn’. Mr Beesley applied for and obtained planning permission for a hay barn but admitted in evidence that he had always intended that the building would in fact be used as a dwelling house. He fitted out the building as a dwelling and moved in. Once he had lived there for 4 years he claimed that the dwelling was immune from any enforcement action by the council. A planning inspector and the Court of Appeal agreed that despite his dishonesty, the dwelling was lawful. The Supreme Court, at the beginning of April, disagreed and ruled that it was contrary to public policy for Mr Beesley to profit from his dishonesty.

This was an extreme case which highlighted the problem for local authorities in discovering particular breaches within the strict time limits and which affected public confidence in the planning system. The Localism Bill deals with this by introducing a procedure to extend the time limits for enforcement action where a breach of planning control has been ’concealed’. Concealment is given a very wide meaning in the Bill. It occurs where ’the actions of a person or persons have resulted in, or contributed to, full or partial concealment of the apparent breach or any of the matters constituting it’ (a person’s actions are to be taken to include representations made by the person and inaction on his part).

This definition leaves many issues unresolved and appears to go further than Mr Beesley’s case which was concerned with deliberate deception. It is not clear in the Bill whether the concealment has to be deliberate or whose concealment matters. Actions which will amount to concealment could include failure to register for council tax, inaccurate or misleading responses to written requests for information from the council and temporarily removing domestic fixtures, such as kitchen units, from a building before local authority inspections. What is less certain is whether, for example, deliberately choosing a hidden location for a building would amount to concealment. Nor is it clear whether a change of use of farm buildings to use for car repairs where the land owner has imposed restrictions preventing any external advertisements or signage on the buildings or in the vicinity would be caught by the definition.

The draft Bill proposes that an authority will be able to apply to the Magistrates Court for a ’Planning Enforcement Order’ within six months of discovery of an apparent breach of planning control. The authority self certifies the date on which sufficient evidence came to the authority’s knowledge. There is no general time limit and this could apply to breaches dating back many years. An order may be made where the Magistrates Court is satisfied that the actions or inaction of a person have resulted in or contributed to full or partial concealment of the breach and that it is just in all the circumstances to make the order.

This will enable an authority to take enforcement action in respect of the apparent breach at any time in the year following the making of a Planning Enforcement Order irrespective of the normal time limits for enforcement action.

A Planning Enforcement Order could well be triggered by an application for a lawful use certificate in respect of a breach of which the authority had previously been unaware . These provisions if enacted in the present form could leave a landowner with a breach of planning control presently immune from enforcement open to action by the local planning authority if later discovered. Landowners with sound evidence to support an application for a lawful use certificate should give serious consideration to regularising the position before the Bill comes into force.

Jane Ferguson is a member of the specialist Landowner Development and Planning department at Wilsons Solicitors LLP, who act only for landowners.