Localism Act - New planning enforcement powers

Following issues of concealment of unlawful development exposed in the case of Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] UKSC 15, the Localism Act 2011 inserts new sections 171BA, 171BB, and 171BC into the Town and Country Planning Act 1990. These provisions are expected to come into force this spring. They will enable local planning authorities in England to apply to the magistrates’ court for a planning enforcement order within 6 months of the date upon the authority becomes aware of evidence of an apparent breach of planning control. This will enable the authority to enforce certain breaches of planning control outside the normal planning enforcement periods. The order will only be made if the court is satisfied, on the balance of probabilities, that the breach of planning control has to any extent been deliberately concealed, and that it is just in the circumstances to make the order. Once the order is made, the order enjoys a 12 month enforcement period. Note: the difficulty for the local planning authority is that they will have to show that the concealment was deliberate. This ought to require more than mere oversight; rather, something akin to a concerted effort to develop without consent and without the authority being able to find out that there has been development without consent.

The problem for conveyancers is that late enforcement under these provisions could affect subsequent purchasers. Enforcement is made against the owner or occupier of the property. However, the magistrates’ court has to be satisfied that it is just in the circumstances to make a planning enforcement order. One would hope, as against a bona fide purchaser who has carried out full searches and enquiries, and who has ascertained that, to the extent work has been carried out without consent, it was carried out outside the normal enforcement period, and where there is no reason to suspect that there had been any deliberate concealment of development, that it would not be just to make the order. However, the prudent buyer will not wish to take a chance, and may require a certificate of lawful use/development before proceeding. That will open a few cans of worms.