Legal Viewpoint - New act enforces extensive reform

It is tempting to see the Localism Act's enforcement reforms as a reaction to high-profile court cases involving attempts to conceal unlawful development for long enough to acquire immunity from enforcement.

But the changes go wider than that and the reasons go much deeper. With so many MPs having been councillors, there are those who have harboured a belief that some developers have been "getting away with it" for years.

The act covers any deliberate concealment of an unauthorised use or development, however insignificant. This includes intentionally avoiding doing something that might reveal the breach, such as failing to arrange a building regulations inspection. The procedure requires councils to apply to a magistrates' court for a planning enforcement order. This creates an "enforcement year" during which action can be pursued, irrespective of when any statutory time limitation may have expired.

The council has to prove that concealment has occurred at some time by the actions or inactions of some person and must certify that the breach has only just come to light. While the court will not consider whether enforcement is expedient, it must be satisfied that it is just to open an enforcement window in this way. Transitional provisions will need to make it clear whether this power applies to breaches that were carried out - or even became immune from enforcement - before the act received royal assent.

Other provisions include changes to procedures for certificates of lawful use or development applications, raising the maximum fine for failing to comply with breach of condition notices in England to £2,500 and new powers to deal with unauthorised advertisements and defaced property.

The act provides that once a notice is served, a council can decline to determine planning applications for the same development. Conversely, appeals against enforcement notices on the grounds that permission should be granted are not allowed if the development is already covered by a planning application. This ability to stop people playing the system by running applications and appeals concurrently will be particularly welcome, in light of long-running sagas such as that at Dale Farm.

A further provision in the act allows local authorities to inform people on whom an enforcement notice has to be served by law that they are not at risk of prosecution. While such notifications can be withdrawn, this measure gives greater comfort to those dragged into an enforcement process by other parties.

Overall, the reforms will make enforcement officers' lives easier in some ways. But the wide casting of the concealment provisions may cause difficulties for property buyers. It is unfortunate that the opportunity was not taken to protect innocent purchasers, who will now be reliant on convincing local magistrates that allowing enforcement action against previously undetected breaches of planning control would be unjust.

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