The Localism Bill has now been passed by the House of Commons and has had its second reading in the House of Lords. This is a wide ranging piece of legislation but the proposed revised planning enforcement powers for local authorities could, according to the Law Society, cause chaos and uncertainty in the property market.
The ability for a local planning authority to take enforcement action is currently time limited. Where a house or extension has been built without planning permission or where there is a change of use, the general rule is that the local planning authority cannot take enforcement action following the expiry of 4 years. Where a condition in a planning permission has not been complied with, the local planning authority has 10 years within which to take action.
There have been some recent high profile cases where owners have built properties without planning permission or in breach of planning conditions and have then relied on the expiry of the enforcement action as justification for the build to remain. For example, Mr Fidler built a house which he hid behind straw bales and tarpaulin. He waited for the enforcement time limit to expire and claimed his build was immune from enforcement action. The court disagreed.
In line with judgments such as that in Mr Fidler’s case and others, the Localism Bill will allow the local planning authority to take enforcement action at any time after it becomes aware there has been a breach of planning control where unauthorised development has been concealed. Concealment can arise through action or inaction. Therefore, someone who buys a property knowing there is a breach of planning law, could be caught by the provisions. Equally, the innocent purchaser could become liable for the actions of their seller.
What this means on a practical level for buyers is that solicitors will need to undertake more due diligence to establish conclusively that there has been no concealment and that their client is not at risk of enforcement action. This could mean that sellers may be called upon to remedy every last potential breach of planning control which is likely to cause delay or meeting the cost of an insurance policy to cover any unknown potential liability.
If you have any queries about this, please do contact Holly Armstrong, the head of conveyancing in our Petworth office on ha@alhlaw.co.uk.
