Planning enforcement – Tightening the rules in cases of deliberate concealment
Posted by Lee May on 23rd March 2012
From the 6th April this year the planning enforcement rules will be significantly tightened up as a result of changes being brought about under the Localism Act 2011. The changes, which affect the time limits within which Local Planning Authorities can take enforcement action, are designed to prevent a recurrence of the infamous case of Mr Beesley, who built a house deliberately disguised as a barn in an effort to get around the planning rules.
The law states that enforcement action cannot be taken against breaches of planning control arising from the construction of a new building, or the change of use of an existing building to a dwelling house, where the breach occurred more than four years ago. In other change of use cases, and cases where planning conditions are being enforced, the time limit is ten years.
Mr Beesley had obtained planning permission for a new barn on his farm but had instead built a house disguised as a barn, complete with a living room, a kitchen, three bedrooms and a gym. He then moved into the property and lived there secretly for just over four years before claiming that it was now too late for the council to take enforcement action.
The case went all the way to the Supreme Court which decided that on the particular facts of this case it was actually the ten year rule which applied rather than the four year rule. Accordingly the council could still take enforcement action. Interestingly the Court went on to say that even if the four year rule had applied Mr Beesley would still have lost as he should not be allowed to profit from his dishonest conduct.
The case prompted the government to look again at the time limits for taking enforcement action where there has been deliberate concealment and design a procedural framework for dealing with these cases. Their solution has been to amend the law so the council has a period of six months from discovering the apparent breach within which to apply to the magistrates’ court for an order, known as a Planning Enforcement Order. If the court grants the order then the council are given a further year and 22 days within which to issue their enforcement notice against the breach, even if the four or ten years have already elapsed.
This change in the law only applies to those cases where there has been an attempt to deliberately conceal the breach of planning control. In other cases the four year rule and ten year rule remain unchanged. However, it remains to be seen how this change will work out in practice.
In particular, what type of conduct counts as deliberate concealment? At one extreme we have Mr Beesley who deliberately misled the council about the true nature of the building, but how far does the concept extend?
There are also questions over how this change will affect those buying land and buildings which do not have express planning permission. Is it now necessary for buyers to look deeper into the background to see whether there has been any deliberate concealment of a planning breach on the land?
It is to be expected that more cases will have to come before the Courts before the answers to these questions become clear.