New powers to tackle concealed breaches of planning control

The Localism Act 2011 ('the Act') received Royal Assent on 15 November 2011 and will effect major changes to the planning system. Significantly it gives new powers to local planning authorities ('LPAs') to take enforcement action against concealed breaches of planning control even after the expiry of statutory time limits. While many of the measures of the Act are not due to come into force until April 2012, the implications of this particular measure are clear for those deliberately concealing breaches of planning control.

The existing legal position

A breach of planning control may consist of an unauthorised development or the non-compliance of a condition of planning permission[1].

LPAs may take enforcement action against breaches of planning control providing they do so within the relevant statutory time limits. For an unauthorised development or an unauthorised change of use of a building to use as a single dwelling house, the time limit for enforcement action is four years from the date of completion or date of breach[2].  For all other breaches of planning control, the applicable time limit is ten years from the date of breach[3].

Why is reform necessary?

The recent case of Secretary of State for Communities and Local Government and another v Welwyn Hatfield Council [4] highlights the difficulties which LPAs have had in trying to take enforcement action against concealed breaches of planning control.

In this case, planning permission was granted for a hay barn. However, instead of building a hay barn, the landowner built what looked like a hay barn from the outside but what was internally a fully fitted dwelling house. The case worked its way up through the courts all the way to the Supreme Court before it was finally decided that the landowner's deceit meant that he could not resist enforcement.

The new rules introduced by the Act will apply to these sorts of cases of deliberate concealment of planning control.

New powers for local planning authorities under the Act

The Act will allow LPAs to take enforcement action against breaches of planning control which have been deliberately concealed even after the relevant statutory time limit for enforcement action has expired.

In order to pursue enforcement action under these circumstances, LPAs will be allowed to apply to a magistrates' court for a planning enforcement order (PEO)[5].  The application can be made at any time within six months of the date on which there was sufficient evidence to justify the application[6].  A prescribed procedure will have to be followed by LPAs in applying for a PEO.

While the new measures are significant, it is important to remember that a magistrates' court may only grant a PEO under these new measures in cases of deliberate concealment[7].  Interestingly, however, there is no definition of concealment in the Act.  So, again, more litigation will doubtless be on the way.

[1] TCPA 1990, section 171A
[2] TCPA 1990, sections 171B(1) and section 171B(2)
[3] TCPA 1990, section 171B(3)
[4] [2011] UKSC 15
[5] See LA 2011, section 124, which inserts section 171BA, section 171BB and section 171BC into TCPA 1990
[6] Ibid.
 [7]Ibid.