Concealment, Enforcement and the Localism Act 2011

I wrote an article for the Local Government Lawyer On-line Magazine entitled “Clued up”[i] which considered the issue of certificates of lawful existing use or development and recalled two very different experiences.

At the time I also raised concerns regarding the proposed changes to the enforcement regime proposed in the then Localism Bill and the potential implications for planning and property lawyers alike of what were, I was prepared to concede, probably unintended side effects.

I was not alone in this regard as the then Law Society President warned that “…the new regime could create uncertainty for the buyers of both residential and commercial property when they cannot establish whether previous owners have concealed a breach of planning control” and that “…the reforms could have a serious effect on both the residential and commercial property markets, where innocent purchasers could become liable for the actions of a previous owner.”

Since this time the Supreme Court has ruled in favour of the local planning authority in the Welwyn[ii] case giving rise to the question as to whether the proposed changes in the Localism Bill were required after all. In addition, the Localism Bill itself received Royal Assent in 2011.

It is therefore probably worth a look at whether any of these warnings were ever heeded and what the legislation holds in store for the wary (or should that be weary) practioner.

The enforcement provisions in the Localism Act 2011 (Part 6 Chapter 5 ss123 to 127) were brought into force on 6th April 2012. While I am, for present purposes, principally concerned with the question of concealed development (s124), these provisions also deal with retrospective planning permission (s123), assurances not to prosecute (s125), time limits and penalties for planning offences development (s126), and unauthorised advertisements and signs (s127).

Section 124 introduces into the Town and Country Planning Act 1990 (as amended) the new sections 171BA, 171BB and s171BC, the combined effect of which is to introduce the Planning Enforcement Order regime.

Section 124 provide as follows:

"(1) In the Town and Country Planning Act 1990 after section 171B insert—

“171BA Time limits in cases involving concealment

(1)Where it appears to the local planning authority that there may have been a breach of planning control in respect of any land in England, the authority may apply to a magistrates’ court for an order under this subsection (a “planning enforcement order”) in relation to that apparent breach of planning control.

(2)If a magistrates’ court makes a planning enforcement order in relation to an apparent breach of planning control, the local planning authority may take enforcement action in respect of—

(a)the apparent breach, or

(b)any of the matters constituting the apparent breach,

at any time in the enforcement year.

(3) “The enforcement year” for a planning enforcement order is the year that begins at the end of 22 days beginning with the day on which the court’s decision to make the order is given, but this is subject to subsection (4).

(4)If an application under section 111(1) of the Magistrates’ Courts Act 1980 (statement of case for opinion of High Court) is made in respect of a planning enforcement order, the enforcement year for the order is the year beginning with the day on which the proceedings arising from that application are finally determined or withdrawn.

(5)Subsection (2)—

(a)applies whether or not the time limits under section 171B have expired, and

(b)does not prevent the taking of enforcement action after the end of the enforcement year but within those time limits.

Section 171BB Planning enforcement orders: procedure

(1)An application for a planning enforcement order in relation to an apparent breach of planning control may be made within the 6 months beginning with the date on which evidence of the apparent breach of planning control sufficient in the opinion of the local planning authority to justify the application came to the authority’s knowledge

(2)For the purposes of subsection (1), a certificate—

(a)signed on behalf of the local planning authority, and

(b)stating the date on which evidence sufficient in the authority’s opinion to justify the application came to the authority’s knowledge, is conclusive evidence of that fact.

(3)A certificate stating that matter and purporting to be so signed is to be deemed to be so signed unless the contrary is proved.

(4)Where the local planning authority apply to a magistrates’ court for a planning enforcement order in relation to an apparent breach of planning control in respect of any land, the authority must serve a copy of the application—

(a)on the owner and on the occupier of the land, and

(b)on any other person having an interest in the land that is an interest which, in the opinion of the authority, would be materially affected by the taking of enforcement action in respect of the apparent breach.

(5)The persons entitled to appear before, and be heard by, the court hearing an application for a planning enforcement order in relation to an apparent breach of planning control in respect of any land include—

(a)the applicant,

(b)any person on whom a copy of the application was served under subsection (4), and

(c)any other person having an interest in the land that is an interest which, in the opinion of the court, would be materially affected by the taking of enforcement action in respect of the apparent breach.

(6)In this section “planning enforcement order” means an order under section 171BA (1).

Section 171BC Making a planning enforcement order

(1)A magistrates’ court may make a planning enforcement order in relation to an apparent breach of planning control only if—

(a)the court is 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, and

(b)the court considers it just to make the order having regard to all the circumstances.

(2)A planning enforcement order must—

(a)identify the apparent breach of planning control to which it relates, and

(b)state the date on which the court’s decision to make the order was given.

(3)In this section “planning enforcement order” means an order under section 171BA (1).”

(2)In section 188 of the Town and Country Planning Act 1990 (register of enforcement and stop notices)—

(a)in subsection (1) (matters to which registers apply) before paragraph (a) insert—

“(za)to planning enforcement orders,”,

(b)in subsection (2) (a) (development order may make provision about removal of entries from register)—

(i)before “enforcement notice” insert “planning enforcement order,”,

(ii)before “any such notice” insert “any planning enforcement order or”, and

(iii)after “specified in the” insert “development”,

(c)in subsection (2) (b) (development order may make provision about supply of information by county planning authority) after “served by” insert “, and planning enforcement orders made on applications made by,”,

(d)after subsection (3) insert—

“(4)In this section “planning enforcement order” means an order under section 171BA (1).”, and

(e)in the heading after “and stop notices” insert “and other enforcement action”.

(3)In section 191 of the Town and Country Planning Act 1990 (certificate of lawfulness of existing use or development) after subsection (3) insert—

“(3A)In determining for the purposes of this section whether the time for taking enforcement action in respect of a matter has expired, that time is to be taken not to have expired if—

(a)the time for applying for an order under section 171BA (1) (a “planning enforcement order”) in relation to the matter has not expired,

(b)an application has been made for a planning enforcement order in relation to the matter and the application has neither been decided nor been withdrawn, or

(c)a planning enforcement order has been made in relation to the matter, not been rescinded and the enforcement year for the order (whether or not it has begun) has not expired.””

A local planning authority can therefore apply for a Planning Enforcement Order permitting them to take enforcement action out of time provided the application to the Magistrates’ Court is made within six months of the discovery of an apparent breach of planning control which has been deliberately concealed. The detailed procedure is set out in the provisions above.

The Supreme Court in the Welwyn case held that the positive and misleading statements made in respect of the nature of the use in that case precluded the party from relying on the normal time limits for enforcement. In the not dissimilar case of Fidler[iii] the permission to appeal was set aside on the basis that the deliberate deception in that case fell squarely within the principles in Welwyn with conduct “in the highest degree dishonest”.

So where does that leave us? How for example are the new statutory provisions to apply? What is the relationship, if any, with the decisions in Welwyn and Fidler?

Will the local planning authority be able to circumvent the provisions and rely on the common law? Will the local planning authority in fact be able to rely on the provisions in all cases? The provisions themselves would not appear to prevent this approach. Indeed some commentators have suggested that local planning authorities may prefer and, in circumstances where the immunity has been acquired before the 6th April 2012[iv], have to rely on the enforcement notice route relying on the Welwyn argument at any appeal.[v]

The Magistrates’ Court must 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”. Furthermore, the court has to consider whether it is “just to make the order having regard to all the circumstances”.

The applicability test is therefore wide and will undoubtedly be capable of application in much less extreme cases than Welwyn and Fidler. Could deliberate concealment include ‘simply’ failing to register flat conversions as separate properties for Council Tax or to have separate letter boxes and numbers on external doors? Are the provisions restricted to the existing occupier(s)?

The problem is that there is no guidance as to what constitutes concealment or to whom the test is to be applied. Certainly the one paragraph on ‘Enforcement’ in the Framework[vi] does not assist in this regard. This tells us that:

“Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control. Local planning authorities should consider publishing a local enforcement plan to manage enforcement proactively, in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where it is appropriate to do so.”

We may therefore have to await local enforcement plans before we get a greater sense of the approach that is going to prevail at least from local planning authorities’ perspectives.

The local planning authority may on the otherhand want to use the regime as it may make it easier to resolve evidential issues associated with the fact and degree often associated with change of use cases. Local planning authorities will still have to be able to point to some act (or omission) which brings the case within the ambit of deliberate concealment.

And what happens in certificate of lawful existing use or development cases? The application for such a certificate may itself become the trigger for a Planning Enforcement Order application. There is also some question as to whether prospective purchasers may require such certificates prior to purchase in order to resolve any uncertainty. But there is also power in the Town and Country Planning Act 1990 (as amended)[vii] for local planning authorities to revoke such certificates in circumstances where “a statement was made or document used which was false in a material particular; or any material information was withheld”.

But what about entirely innocent parties who were not responsible for the concealment and who in the case referred to above[viii] bought on the basis of a certificate of lawful development? Will the requirement “and the court considers it just to make the order having regard to all the circumstances” be a sufficient safeguard?

It remains to be seen how Magistrates’ Courts approach this particular question given that it is so different from the issues that arise on a ground (a) appeal ground “that planning permission ought in any event to be granted” and their, in my experience, relatively poor grasp of rudimentary planning issues. 

---

  

[i] 6th April 2011 see http://bit.ly/hI7Fs8

[ii] Secretary of State for Communities and Local Government and another v Welwyn Hatfield Borough Council [2011] UKSC 15

[iii] R (on the application of Fidler) v Secretary of State for Communities and Local Government [2011] EWCA Civ 1159

[iv] Article 13(3) of the Localism Act 2011 (Commencement No.4 and Transitional, Transitory and Saving Provisions) Order 2012

[v] Martin Goodall’s PlanningLawBlog 11^th May 2012 see http://bit.ly/K6OD4r   

[vi] Paragraph 207 National Planning Policy Framework 2012

[vii] S193 (7) Town and Country Planning Act 1990 (as amended)

[viii] Appeal Reference APP/Y5420/C/10/2136455 & 2136456 see http://bit.ly/KX0wt2

CIL, unintended consequences and the ‘Boris bite’

I have written, at some length, on the introduction of the National Planning Policy Framework (“NPPF”) and still have some lingering concern that the in-built tensions between the presumption in favour of ‘sustainable’ development and the Coalition’s ‘Localism’ agenda will inevitably lead to both a diversity and inconsistency in planning decision making across England. 

The distillation of the accumulation of years of planning guidance into the concise NPPF designed to encourage ‘sustainable’ development (subject to protections for good design and protected land and sites including the Green Belt) has been a fractured and often bruising process. It has been broadly well received by the property industry but less so by those with an interest in protecting the natural and built heritage.

But will the NPPF actually deliver?

The NPPF, in my view, cannot and must not be viewed in isolation.  The financial implications of the community infrastructure levy (“CIL”) and the Mayor's community levy which revenue is to fund the Crossrail project (“Mayor's CIL”) must be taken into account.  There is a real risk that these may prove less palatable and ultimately impact on the financial viability of some schemes, especially around London.

So let us look at what the CIL is.

CIL is essentially a "tax" on development which is designed to be pooled by the relevant local authority to fund a range of infrastructure. The intention being to formally take a number of such contributions outside of the scope of section 106 Town and Country Planning Act 1990 (as amended) Planning Obligations and consequently outside the scope of avaricious local authorities and their ever ambitious ‘shopping list’ of funding desires. One of the charges against the planning system was that local authorities were able to hold developers to ransom with their financial demands when the only alternative was a time consuming and costly challenge by way of appeal following the inevitable refusal. CIL was and is seen as the way to provide greater clarity and certainty for developers in terms of the costs of their financial infrastructure contributions. Although the provision of affordable housing and narrow site specific considerations currently remain outside of the CIL regime there is consideration currently being given to whether and how affordable housing provision should and can be included within CIL.

Increasingly local authorities are adopting CIL. According to Planning Blog’s latest count (Jamie Carpenter CIL Watch #14 20^th April 2012),

“there are now 38 CIL charging authorities in England that have published CIL charging plans. Of those, five are already charging the levy (Newark and Sherwood, Shropshire, Redbridge, London mayoral CIL) and one (Huntingdonshire) is set to start charging on 1 May 2012. Two authorities (Wandsworth and Poole) are currently at the examination stage. A further nine have begun consulting on draft charging schedules, while 21 are at the preliminary draft charging schedule stage.”

In terms of the process of putting a local CIL regime in place local authorities must first consult on a "charging schedule" which sets out the amount payable in respect of different types of development. This will also include how it should be paid, what reliefs have been adopted, and what it is to be spent on. Proposed infrastructure projects need to be identified and costed for this exercise to have any significant validity.

Developers are to be encouraged and advised to make representations as part of the consultation process to persuade authorities to adopt relevant discretionary reliefs and procedures. These could for example include discretionary charities exemptions, payment by instalments, and the exclusion of certain types of development like development for educational purposes.

It is of course critical that developers consider very carefully the viability assumptions made by an authority in its CIL calculation and comment thereon because once set and applied to any particular development the CIL payable as a result thereof is non-negotiable and falls due (subject to any instalment provision applicable) on commencement of the development.

The Mayor's CIL is separate and came into force on 1 April. It applies to most development across London and according to recent anecdotal evidence led to something of a spike in section 106 planning gain deals being agreed ahead of this date. Schemes with planning permission but where no section 106 agreement was tied up before 1 April have to pay the Mayor’s CIL contribution on top of the section 106 payment to the relevant borough.

There are three bands of charge in the Mayor’s CIL depending on which borough the development is located in. The amount is chargeable on net additional floorspace of a development (subject to conditions). There is a nil rate charge for development for use by education and health services. The Mayor's CIL is payable on commencement of a development.  Of greater concern is that there no provision for (i) payment by instalments or (ii) charities exemption and the Mayor has elected not to adopt relief for "exceptional circumstances" which might apply where there is more payable under an existing section 106 agreement than would be payable under the CIL, and the difference may impact on the viability of the scheme. The Mayor’s CIL is apparently referred to in the property industry as the ‘Boris bite’. 

Another unintended consequence of CIL is the potential impact on the self-build industry.  The Coalition Government has recently announced a new package of support for the self-build industry. The launch by housing minister Grant Shapps was joined by a panel of celebrity house-building experts and the minister subsequently used the micro blogging site Twitter to say that the “Average cost of a new home is now over £232,000. By contrast a self-builder can build a 3-4 bed home for £150k”. I have asked the minister, by the same medium, “Does the £150K figure include land acquisition, CIL / other s106 planning obligation costs & any associated professional fees?” but so far he has not replied. 

But of more concern is that self-builders themselves are saying that some emerging CIL payment policies take no account of the size of residential schemes with the effect that there may be cash flow problems for smaller projects. This arises where the CIL charges only allow payment by installments for CIL levels above minimum thresholds which automatically disadvantage self-builders who inevitably face smaller CIL charges.

As much as these new provisions are to be welcomed I take the view that, regardless of your view of the NPPF, there is still work to be done to ensure transparent and consistent decision-making which does not stifle ‘sustainable’ development.