The Government has issued a commencement order bringing various parts of the Localism Act 2011 into immediate force. They have also confirmed that some remaining key changes will come into effect in April including the strengthening of planning enforcement powers for Local Authorities.
The first of these new enforcement powers will be to prevent the “twin tracking” of a retrospective planning application with an appeal against an enforcement notice on grounds planning permission ought to be granted. The power is limited but could end up encouraging Local Authorities to take enforcement action whilst a retrospective application is still in progress – at present they usually hold off enforcement action until such an application has run its course. Obviously the retrospective planning application would still have its usual right of appeal – whether against refusal or non-determination. Our advice will continue to be for those threatened with enforcement action to try and get in a retrospective planning application before an enforcement notice is served.
The second enforcement power to come into effect in April is to enable Local Authorities the possibility to take action against concealed breaches of planning control even after the usual time limit for enforcement has expired. The authority can, within six months of a breach coming to their attention, apply to the magistrates court for a “planning enforcement order” which would give them a year to then take enforcement action. This power has been introduced in response to well-publicised concealment cases including the most famous – the Fidler case where a “castle” was constructed hidden by straw bales. Whilst I wouldn’t condone such an approach I have always enjoyed the possibility in the UK planning system that if you have enough nerve you might get away with something mere ordinary mortals never would. A rare potential for daring and excitement to win out against form-filling and bureaucracy. But the Fidler castle didn’t win out – it was crushed under the current system by a creative interpretation of when a building is substantially complete.
The danger for owners of land where the enforcement time period has expired on a breach of planning is in the potential flexibility in respect of concealment – the court need only be “satisfied, on the balance of probabilities, that the apparent breach, or any of the matters constituting the apparent breach, has (to any extent) been deliberately concealed by any person or persons”. In other words:
- concealment of only part of the breach is sufficient to render it all open to enforcement
- the deliberate concealment could be to an almost negligible extent
- the concealment may be by anyone – it could have been by a past owner, it could even have been by a third party.
Presumably a planning enforcement order could even be made where a Certificate of Lawfulness has been recently granted. The effect on the Certificate of Lawfulness of an Existing Use or Development regime would seem to be that you will need to ensure that the Council are aware of your breach six months before you can apply or the Council will have to wait six months after the application before issuing one – it is difficult to see how this might work in practice.
In the unlikely event that you are harbouring some hidden construction behind straw bales or have any other enforcement queries contact Pure Town Planning for advice – in absolute confidence of course.