There’s Nowhere to Hide under Localism – The New Enforcement Rules

Have you ever wondered why, when out for a quite Sunday walk in the countryside, you can sometimes hear the faint strains of the Eastenders omnibus and childish giggling coming from the direction of a large hay rick.

A brief review of any tabloid newspaper will quickly reveal that hidden deep in the straw bales will be a mansion, castle or other habitable dwelling, cunningly concealed from the wary eyes of the planning department. In truth, very few people have ever prospered from such drastic attempts to circumvent the planning system, but it has caught the imagination of the vociferous, morally righteous, rate-paying, god fearing public and the self-appointed protectors of the landscape, to an extent that this Government has decided to do something radical about it.

Few people know (or choose to recognise) that it is not actually a criminal offense to carry out development without planning permission, but it is if you then fail to comply with an enforcement notice. Equally, there is no obligation for authorities to use their extensive enforcement powers. However, the ‘public’ generally want blood to be spilt for such flagrant breaches of the rules and cannot believe that authorities would ever NOT enforce, whatever the circumstances.

Yes. There are people who deliberately and wantonly abuse the system. Tell me something new. As a planning consultant I am regularly invited to ‘ignore this’ or ‘overlook that’ in providing guidance and advice, and such inquiries get short shrift.  But, like any walk of life, if you always abide by all the rules, all the time, there is very little that would actually get done. Flexibility is the key.

Not every departure from the straight and narrow is so demonstrably awful that the ‘breacher’ should be strung up from the nearest tree. Sometimes it’s a simple mistake or oversight (yeh right!), or a pragmatic alteration to a scheme in order to overcome a problem that could otherwise cause a costly delay. That’s why the retrospective application has been a means of ‘legalizing’ the situation for decades and even an appeal against an enforcement notice allows for permission to be granted under Ground ‘a’.

But things are about to change. The Localism Act 2011 (enacted late last month) now adds additional measures to the panoply of enforcement powers, founded on the general premise that:

“The Localism Act will strengthen planning authorities’ powers to tackle abuses of the planning system, such as deliberately concealing new developments”.

But it goes far, far deeper than that. Oh yes.

Planning authorities now have the power to decline to determine retrospective applications after an enforcement notice has been issued; and

There will be limits to the right of appeal against an enforcement notice after a retrospective planning application has been submitted, but before the time for making a decision has expired. So, if an authority decides to issue an enforcement notice during the consideration of a retrospective planning application, things could get a bit tasty.

A planning authority can apply to a magistrate’s court for a Planning Enforcement Order, within six months of discovery of an apparent breach of planning control. The order would allow the authority a year in which to take enforcement action irrespective of the usual time limits in the Act (the four year and ten year rules). The effect of the Order will essentially remove any immunity from Enforcement action. The Magistrates Court may only make a Planning Enforcement Order though if they are satisfied, on the balance of probabilities, that the breach has been ‘deliberately concealed’ (a situation yet to be defined – but I expect its one of those situations where, ‘you know it when you see it’).

The key issue to bear in mind here is that because the Act does not provide a time limit for seeking a Planning Enforcement Order, it could be backdated to breaches going back over many years. Whether this is likely to happen in practice is debatable, but the option appears to be there if needs be.

And here’s the real rub. A Planning Enforcement Order might be triggered by an application for a Certificate of Lawful Use that has been submitted to regularise a breach of planning control. The planning authority may have been unaware up to that point, but if the planning authority consider there has been “deliberate concealment” by the applicant, then the PEO procedure looks high on their list of actions to take. As I say, there’s nowhere to hide.

And, just in case you thought this is all academic as you’d, ‘never do anything like that’ yourself, do you know if there is a latent problem with the property you’ve just purchased? Is than shiny new extension actually lawful? The liability runs with you, the landowner.  Best to check – or perhaps not? If you know about a problem then arguably not resolving it amounts to a deliberate act of concealment.

The provisions in the Act are likely to be introduced fairly quickly. The suggestion is by 1^st April 2012. Just enough time for the local lynch mobs to hold a committee meeting and get planning permission for some new parish stocks, or a change of use for the maypole as a gallows.

And, if you’re sat in your pseudo-medieval, 15 bedroom’ed, bijou, ‘Southforks’, mansion in the midst of a bunch of straw bales, somewhere in rural England or Wales be afraid. Be very afraid!