The Localism Act - Reforms to the Planning System
The Localism Act received Royal Assent on 15 November 2011 and is coming into force in stages. One of the key features of the Act provides for reforms to the planning system and in particular new planning enforcement measures.
At present enforcement action can be taken by the Local Authority at its discretion and where it is expedient to do so. There is however immunity from enforcement action where the following time limits have lapsed:-
- Four years from the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under the land (it is important to note that the four years commences from the date on which the works were substantially complete)
- Four years from the date of the change of use of any building to a single private dwellinghouse
- Ten years from the date of the breach of any other planning control including a material change of use or breach of condition.
The Localism Act however inserts new sections into the Town and Country Planning Act 1990 (TCPA) which will allow local authorities to apply to a Magistrates’ court for a Planning Enforcement Order (PEO) permitting them to take enforcement action after the above time limits have expired where the breach has been concealed.
The reason for such additions are due to cases such as the notable case of Fidler v Secretary of State for Communities and local Government and another [2010] EWHC 143 Admin) where a landowner had built a house and concealed it with bales of straw. Fidler argued that the house was immune from enforcement action as it has been substantially complete for in excess of four years, however it was deemed that the removal of the bales needed to have taken place before the point of “substantial completion” could be reached.
Whilst there is a clear move by the Localism Act to deal with intentional concealment and ensure that such “abuses of the planning system” are handled this, in itself, may cause further difficulties and debate in the courts. The Act provides that a PEO may only be made if the Magistrates court is satisfied that on the balance of probabilities (more than a 50% chance) that a person’s actions (including representations or inaction) have resulted in, or contributed to, the full or partial concealment of the apparent breach of planning control. The issue with this test is that there is no definition within the Act for “concealment”.
Consequently, whilst on the face of it these provisions have been effected in order to protect against those who deliberately exploit the rules, they could be used by the local authority as a safeguard where a breach has simply gone unnoticed by them.
Rebecca Whittaker, solicitor in Lanyon Bowdler's Town and Country Planning department comments "It would appear to be the case that the meaning of concealment will be determined over time by the courts, and it is with great interest that we await to see how wide this definition will actually be! Due to the above however, I think it is safe to say that appeals of PEOs will certainly be commonplace!"