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The Localism Bill is set to proceed to the Report Stage in the House of Commons on 17th May, followed by the Third Reading. If it becomes law in its present form, it will, among other things, introduce amendments into the Town and Country Planning Act 1990 (inserted as ss. 171BA, 171BB and 171BC) which will make a significant difference to the powers a local planning authority (“LPA”)currently has to enforce against breaches of planning law. These changes will affect enforcement action in what the Bill refers to as ”cases involving concealment.” Where this applies, and it appears to the LPA that there has been a breach, the new provisions will enable the LPA to apply to the magistrates’ court for a planning enforcement order (“PEO”) which will clear the way for enforcement action to be taken within a period of a year after the order is granted (plus 22 days, if there is an appeal), whereas such action would be deemed out of time as the law currently stands.

The circumstances under which the court can make a PEO are set out at the inserted section 171BC. It is stated that the court must be satisfied, on the balance of probabilities, that there has been “full or partial concealment of the apparent breach or any of the matters constituting the apparent breach.” Secondly, the court must consider it just to make the order “having regard to all the circumstances.”

These provisions have attracted criticism for two main reasons, firstly because the act of “concealment” is described in the Bill at the inserted s.171BC as having taken place through “actions which “have resulted in, or contributed to, full or partial concealment of the apparent breach”, and further such actions are said to include both “representations made by the person” and “inaction on the person’s part.” In other words, the scope of what is to be interpreted as concealment is very wide. Arguably, it is far too wide if these provisions are considered to have come into being simply as a reaction against two very blatant recent examples of attempts to circumvent the planning system – one involving the construction of a Tudor castle hidden behind some tarpaulin and a hay bale, and the second involving the construction of a residential dwelling where permission had been granted just to build a barn. The argument is, then, that these high profile cases of extremely calculated deception should not be used as a pretext for extending culpability to all property developers and owners who may turn out inadvertentlyto have failed to adhere totally to the plans for which permission has been granted.

The second issue is that the PEO overrides the usual limitations of time for enforcement action, and the actual date of the commission of the breach is not relevant. Instead, an LPA can apply to the court at any time, provided it does so within six months “beginning with the date on which evidence of the apparent breach of planning control sufficient in the opinion of the local planning authority came to the authority’s knowledge.”  Some property lawyers have remarked that this produces legal uncertainty and will mean that due diligence carried out by purchasers will need to be intensified to gain a thorough knowledge of a property’s planning history, as the ability to rely on the enforcement time limits of four and ten years is diminished. The fear is that such investigations will cause delay to property transactions, while future owners check that they will not be liable for past breaches.

The third issue that has been controversial is that it is the LPA which certifies the date on which sufficient evidence came to its knowledge (as set out at inserted section 171BB). However, it is difficult to see how in practical terms any other party could have  insight to certify when a situation came to the LPA’s knowledge, and therefore when the six month period allotted to the LPA to apply to the court should commence. If there is reason, though, to believe that the LPA has not acted properly, the person against whom the PEO is sought could have recourse to a legal remedy and the order can be appealed.

On a procedural note, the LPA using these powers will be advised to adapt its scheme of delegation to ensure that the signature is authorised. In addition, where enforcement measures are determined by the planning committee, the time limit of six months to apply to the court may not be over-generous.

It follows that the provisions will  also trigger an amendment to the legislation governing the grant of a certificate of lawfulness of exising use or development, and consequently a certificate of lawfulness will not be granted where the PEO procedure has been invoked.

Overall, the question must be whether the draft provisions are a proportionate reaction to what may be a very rare phenomenon. Both cases mentioned above were costly and time-consuming, and it appears that the government believes that even though the courts were able to reassert the authority of the planning system, the publicity these cases attracted has dimished respect for the system. These provisions can be seen as an attempt to put the initiative firmly back in the power of the LPA to prevent any future occurrence.

It should be borne in mind, though, that the power at stake here is limited to that of serving an enforcement notice. Of course, this is a serious matter, but criminal proceedings only follow where there a failure to comply. Moreover, the court explicitly has the power only to grant a PEO if it is just in all the circumstances, which should include a consideration of the seriousness of the alleged breach and of factors such as the length of  time that has evidently elapsed since it allegedly occurred. As mentioned above, there is also provision for an appeal. In the final resort, the legislation still falls short of imposing a statutory duty on the LPA to take enforcement action, and this will, hopefully, allow reasonableness to prevail with all parties.