How much time is available to a local planning authority to enforce breaches of planning control?

See section 171B of the Town and Country Planning Act 1990:

“(1) Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed.”

“(2) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach.”

“(3) In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach."

In Welwyn Hatfield Council v Secretary of State for Communities and Local Government & Anor [2010] EWCA Civ 26 an applicant for planning permission was granted permission for the erection of a hay barn. Instead, he built a house. The applicant and his wife moved into the property on 9 August 2002. On 15 August 2006, he applied under section 191 TCPA 1990 for a certificate of lawfulness of existing use. The process was described by the Court of Appeal as “deliberate deceit”. The building had been given the external appearance of a barn, but had been fitted out internally as a dwelling. However, the Court of Appeal unanimously held that the local authority had lost its ability to enforce a breach of planning control, since the applicant’s change of use fell squarely within section 171B(2).

Lord Justice Richards said: “the lesson for local planning authorities is clear. When checking whether a building has been built in accordance with planning permission and is being used in accordance with the permitted use, they need to look carefully at the inside of the building and not just at the exterior. External appearances can be highly misleading, as this case shows, and authorities need to be alert to the possibility of deception. The legislation in its existing form is open to abuse. Whether it should be amended so as to prevent dishonest advantage being taken of the shorter time limit under section 171B(1) and (2) is, as I have said, a matter for Parliament.”

The February 2010 edition of the Commercial Property Information Update is published today on this website.

The draft CRC Order has now been published on the Office of Public Sector Information (OPSI) website. Click on: The CRC Energy Efficiency Scheme Order 2010, press print, and read all 87 pages.

In November 2009, we posed the question: Is rent an expense of an administration? The question was answered in the affirmative, on the basis of obiter comments made by Mr Justice Briggs in the case of Lomas & Ors v RAB Market Cycles (Master) Fund Ltd & Ors [2009] EWHC 2545 (Ch). Now, we have a Chancery Division decision in which the point was central to the case: Goldacre (Offices) Limited v Nortel Networks UK Limited (in administration) [2009] EWHC 3389 (Ch). This case positively decides the point in favour of the landlord. Where the administrator makes use of the tenant’s premises during the period of administration (e.g. to continue trading, or, perhaps, to grant licence to occupy to a buyer of the tenant’s business under a pre-pack), rent falling due for the period of use will become an expense of the administration. This does not necessarily mean that the rent is paid on time: the administrator will have to weigh up other competing priority claims. But it takes the landlord ahead of the vast bulk of unsecured creditors lacking such priority.

Forgot to fill in the blanks in an agreement? Not to worry: the court will do it for you. In Westvilla Properties Ltd v Dow Properties Ltd [2010] EWHC 30 (Ch), a draft lease attached to a sale and leaseback agreement had failed to specify a landlord's service charge percentage – the space had been left blank. The buyer argued that the agreement was therefore void for uncertainty. But avoiding a contract for uncertainty is the last thing a court wants to do. The High Court held that “the question of what this draft Intended Lease means when it defines the Landlord's Share of service charges at "[ ] per cent" requires, again, the application of the principles summarised by Lord Hoffmann in Chartbrook Limited v Persimmon Homes Limited [2009] UKHL 38. The question is what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to have meant the percentage to be, judged from the language they used.” Hoffmann's words in Chartbrook may save a lot of mistaken drafting. He said that "there is not, so to speak, a limit to the amount of red ink or verbal rearrangement or correction which the court is allowed. All that is required is that it should be clear that something has gone wrong with the language and that it should be clear what a reasonable person would have understood the parties to have meant."

A set of draft clauses dealing with landlord and tenant issues arising under the Carbon Reduction Commitment Energy Efficiency Scheme is added to the website. Whilst ongoing industry wide consultation is still ongoing, they are not currently recommended for use, and have not therefore been included in Property PSL standard leases. Click on http://propertypsl.co.uk/node/426

It's not quite property law, but the website carries a link to an excellent article in a US journal on the dos and do nots of communicating by email. It is well worth a read for any lawyer: E-Mail Netiquette for Lawyers by Gerald Lebovits, a judge of the New York City Civil Court.

Also at the same place on the DECC website there is a new 99 page user guide: "The CRC Energy Efficiency Scheme User Guide". This is a guide for clients "written as a practical tool for those people within these organisations who will be responsible for ensuring compliance with the scheme" (e.g. energy managers and financial managers).

According to the DECC website (the Department of Energy and Climate Change) the draft Carbon Reduction Commitment Order was laid in Parliament, yesterday, on 19 January 2010. It does not currently appear on the list of draft statutory instruments on the OPSI website, but it will do so shortly, and a link will be provided from here.

Land Registry has started a "Protect your Property" campaign in an effort to reduce property fraud, and to encourage property owners to keep their addresses for service up-to-date on the register. The Land Registry has published a leaflet - click on: Help protect your property – keep your contact details up to date. There are obvious reasons for keeping your address for service up-to-date. Where a notice is required to be served by the Land Registry on the registered proprietor, it will be served at his/her address(es) for service. For example, if anyone attempts to acquire registered land through an adverse possession claim on Form ADV1 notice of the application is served upon the registered proprietor who then has the opportunity to oppose.

Interestingly, as regards fraud, the following appears in the FAQ section of the Land Registry website:

Q. Why can't you bring back land and charge certificates? These helped to prevent fraud.

A. The fact that someone held a land or charge certificate was not proof that they were the owner on the register. There were instances of fraud even when we had land and charge certificates.