December 14, 2011 7 Comments
Have a look at s125 of the Localism Act 2011. When you’ve read it, I’ll bet you have an expression a bit like this:
How do I know you have this expression? Because I had it too when I read it. I still get it every now and then, when I get flashbacks.
Section 125 of the Localism Act introduces the new s172A of the T&CPA which will allow LPAs to serve a ‘letter of assurance’.
“What’s a letter of assurance?” you might legitimately ask, imagining it perhaps to be some lovely kind of letter from a benevolent enforcement officer to the unfortunate recipients of an enforcement notice, intended perhaps to inspire confidence, support or feelings of warmth and well-being?
Hmmm. Bear in mind that in order to receive such a letter you would have to have had an enforcement notice issued against you, so the recipients of such letters would be the ‘ruthless, determined and monied’ types that Bob Neill warned us about then? Anyway…
You might have guessed that a ‘letter of assurance’ isn’t some warm and fluffy note from enforcement officers to developers (possibly with lovehearts instead of dots over the ‘i’). So what is it really and where does it fit in the bigger picture of planning enforcement?
When serving an enforcement notice (or at any stage afterwards) the LPA can serve a ‘letter of assurance’ stating that in the circumstances known to the LPA the person(s) concerned are not at risk of prosecution in connection with some or all of the matters contained within the enforcement notice.
And there we are – you’ve got that expression again.
So envelope #1 through the letterbox says “IMPORTANT – THIS NOTICE AFFECTS YOUR PROPERTY” and then sets out lots of alleged breaches of planning control, lots of steps you are required to take in order to remedy the breach(es) and the fact that failure to comply with the notice is a criminal offence punishable by way of fine to £20,000 in the Magistrates’ Court and unlimited fines at the Crown Court.
But envelope #2 on the doormat says “Actually, we won’t prosecute you in relation to the notice in envelope #1“. You know what? I think I’m developing a nervous tic…
When the Government first tabled this provision – in the House of Lords as amendment 155C and only on day nine (of ten) in committee stage at the House of Lords - Lord McKenzie of Luton observed that:-
“…it is a bit odd to serve a notice on somebody and then write them a letter and say ‘well, in a sense, we didn’t mean it’…to serve a notice and then to say ‘well, don’t worry – we’re not going to prosecute’ seems rather an odd thing for a government to do.” (Lords Hansard, 19th July 2011, col. 1305)
But what about if the promise not to prosecute that was made in that letter became binding “on any person with a power to prosecute an offence under s179“?
Check out the new s172A(5) of the T&CPA and Jackie Chan in 3…2…1…
So it’s a good thing that the filing, records and archives of LPAs are all top-notch and infallible, so they’ll have definitive records of who has and who hasn’t had such letters before a prosecution is mounted and not after…