To Infinity And Beyond!
February 21, 2011 6 Comments
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
About Scott Stemp
planningblog.org 
Interesting comments, but what is the purpose of the provision ?
To be able to take action against unauthorised and unacceptable development, deliberately concealed to obtain immunity.
The house behind the bales will amost certainly be unacceptable (hence its disguise) whether it comes to light in 1 year or 10 years.
The granny annexe is a different situation altogether and brings in the question of expediency.
LPA’s should always remember that grannies have a habit of passing on, so should look past the immediate and consider the future use when determining such applications.
If the annex has been used (unauthorised) for a number of years without complaint, is it unacceptable ?
Regards
Roger
Roger
You appear to forget that future uses (after granny has ceased to need the annex(e)) is not a material consideration when considering an application for a granny annexe
Thanks Roger – but I think you’re missing the point. The purpose of the provision (as you put it) is to enable enforcement action against deliberately concealed unacceptable and unauthorised development, but my point is that the proposals are not that limited. There is no requirement that the concealment be deliberate – where is the word ‘deliberate’ (or ‘dishonest’ or ‘deception’) in the proposed s171BC? Entirely absent. The drafting is too wide and catches many more situations than it was plainly intended to.
As you mention, the house behind the hay bales will be unacceptable in one or ten years, but the new s171BC would enable enforcement twenty, thirty, forty or more years later. Enforcement provisions need to balance giving appropriate enforcement abilities to LPAs whilst at the same time allowing a sufficient degree of certainty for landowners. How would you feel maybe fifteen years after buying a property if you were suddenly facing an LPA applying for a PEO for something that was there when you bought the land? This is after all someone’s home we’re dealing with here (or possibly their livelihood, or both).
I don’t understand why you think that the house behind the bales doesn’t include ‘expediency’ since that is a prerequisite consideration of the issuing of any enforcement notice. Would it be expedient to issue an enforcement notice against the ‘hay bale house’ if it had been there for thirty years without complaint?
If the house behind the bales has been used for a number of years without complaint, does that make it acceptable? Maybe no-one complains about the ‘granny annex’ because it is concealed from them (i.e. they are not aware it is there) by the original dwelling – how is this different from concealing a dwelling behind hay? Why does the making of a complaint or not make a material difference in terms of expediency?
The point I make is that these proposals equally catch both scenarios; they potentially destabilise the property market by introducing enormous future enforcement uncertainties and therefore also potentially increase the liabilities of professionals involved in the transfer of land. They allow LPAs a ‘Get Out Of Jail Free’ card where they may have failed to effectively investigate or enforce within the normal s171B time limits (there’s nothing in the proposals that bars an LPA that has acted unreasonably from seeking a PEO) and introduces potentially lengthy and expensive legal proceedings prior to enforcement action even commencing.
Good motives, genuinely positive intentions or intended purposes count for nothing if they are poorly executed through badly worded legislation that creates many more problems than it solves.
Clause 104 has been widely criticised for precsiely the reasons identified in Scott’s post. The Law Society has issued a strongly worded press statement pointing out the serious consquences, which go far beyond the issue of planning enforcement and will cause major problems for people buying property or taking a lease. How are conveyancers to advise their clients?
I orignally commented on this clause in my own planning law blog in December (http://planninglawblog.blogspot.com) and others have also picked up on it, as Scott mentions.
Deliberate concealment is one thing, but the idea that one can conceal development by ‘inaction’ takes this provision beyond what is acceptable. There needs to be some certainty as to the legal position in relation to past development. That is what lies behind the 4-year rule and the 10-year rule as laid down by s.171B. It is also the rationale behind s.191, enabling someone to obtain a Certificate as the Lawfulness of an Existing Use or Development. The latter provision will be rendered almost useless if Clause 104 goes through in its current form.
I think you’re right about the effect these proposals will have on CLEUDs. If clause 104 is enacted in its current form then making a CLEUD application will simply act as a ‘tip off’ to the LPA to make them consider whether they should apply for a PEO. Imagine that – a statutory regime where you become the informant, identifying yourself to the LPA who would otherwise maybe never have found out about you and your development!
Readers can find a link to Martin’s blog on the “Links” page.
Thanks Scott – A good summary of a crazy provision. Speaking as an ex LPA head of enforcement myself, the lack of time limits will make their job much harder. Persistent and vexatious moaners will be on to them about all manner of historical problems. Falling back on an expediency argument doesn’t satisfy this kind of complainant and leaves the council open to complaints and ombudsman action (Annoying and time consuming to defend, even when the council is in the right). The 4 or 10 years gave a neat cut-off.
Another point – the Permitted Development rights change over time. How do you prove what regulation regime was in force at the time of building something? Who is the onus on – the council to prove that something that isn’t now PD also wasn’t at the time it was built, or the householder to prove that it was?