Assuring Letters

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)

Well quite.

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…

Scott

About Scott Stemp
Barrister specialising in planning and criminal law

7 Responses to Assuring Letters

  1. David Brock says:

    It is difficult to see the point of this provision as the assurance can be withdrawn at any time – see section 172A (2). So actually the assurance is no such thing. A prosecutor bound by it will be unbound simply by getting it withdrawn.

    • Scott Stemp says:

      You’re quite right David – I agree I can’t see the point of this either. If this provision ever comes into force I do not expect (m)any LPAs to avail themselves of their brand-new power.

  2. Agree, it is an arse-about-faced way of doing it. I do however feel that there is value in being able to serve a notice that sits as a charge on the land until the next time it changes hands but which you don’t want to prosecute over.

    I had a case with some UPVC rear windows on a LB. The sweet old dear had put them in years ago and someone had got round to complaining (I think when I had chased them over some much more prominent windows). It was the point at which the old dear said she would pay the council 50p a week if it came in and changed the windows for her that I decided there really was no mileage at all in pursuing it. I didn’t want to serve a notice as the worry would have killed her. However, had there been a mechanism to say ‘its fine while you live here, but as soon as you pass the place on to your kids they are going to have to take a little out of their inheritance to rectify this problem’ then that would have been a good way of dealing with it.

    • Scott Stemp says:

      But you don’t need a ‘special letter’ to serve an enforcement notice and then not prosecute for breach of it. You just don’t prosecute. And if you wanted to write a covering letter with your enforcement notice saying ‘you’re fine but the kids will have to sort it out’ then there was never anything stopping you. Imagine this section never existed; had an LPA tried to prosecute in circumstances where it had committed to writing a promise not to prosecute then any such prosecution wouldn’t last very long (it would almost certainly be stopped as an abuse of the court’s processes) and very likely result in costs orders too.

  3. Sulla says:

    …and the point of this provision is what? Either the back of my head buttons up or DCLG have wasted time and our money with this particular effort.

  4. Jon Isnardi-Bruno says:

    Dear Mr Stemp,
    When, at your best guess, will the enforcement provisions of the Act come into force, if indeed they ever come into force. I have heard 6th April mentioned. Your most cunning assessment, please.

  5. Scott Stemp says:

    Dear Jon

    I’ve no specific information as to when the enforcement provisions might come into force other than DCLG’s expressed aspiration that all provisions of the Localism Act be effective by 6th April.

    Having said that, it was only a few weeks ago that another tranch of provisions of the Criminal Justice Act 2003 actually came into effect, only eight years after obtaining Royal Assent…

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