The limitation periods for taking enforcement action in respect of breaches of planning control are set out in section 171B of the Town and Country Planning Act 1990 (“the Act”). On the face of it, they are absolute, but the Supreme Court made a considerable inroad into that principle in Welwyn Hatfield Council v Secretary of State for Communities and Local Government [2011] UKSC 15 where it held that, as a matter of public policy, deception on the part of the landowner could disentitle him from relying upon the relevant statutory time limit, so allowing the local planning authority (“LPA”) to take enforcement action out of time.
One indirect result of that case was the decision of parliament to amend the law by inserting into the Act new sections 171BA to 171BC. Their purpose, stated briefly, is to enable LPAs in England to take enforcement action beyond the time limits set out in section 171B of the Act in cases where there has been “deliberate concealment”. It involves the LPA in making an application to a magistrates’ court for what is known as a “planning enforcement order” (“PEO”).
The LPA must first have sufficient evidence of an apparent breach of planning control to justify applying for a PEO in its possession. A certificate signed on behalf of the LPA stating that it has such evidence, and stating the date on which such evidence came to the LPA’s knowledge, will be treated as conclusive. An application to the magistrates’ court may then be made within six months of that date. (It does not matter that the section 171B time limit has yet to expire.)
On making the application, the LPA must serve a copy of it on the owner and occupier of the land, and on anyone else with an interest in the land that would, in the opinion of the LPA, be materially affected by the taking of enforcement action in respect of the apparent breach. All such persons have a right to appear before, and be heard by, the magistrates’ court as does the LPA.
The magistrates’ court may only make a PEO if it is satisfied, on the balance of probabilities, that the apparent breach of planning control has been deliberately concealed, and that it is just to make the PEO having regard to all of the circumstances. The effect of the PEO is that the LPA will then be able to take enforcement action during the “enforcement year”. This begins at the end of twenty-two days starting with the day on which the PEO is made, or when any appeal against the PEO has been finally dismissed.
The amended regime has now come before the court in Jackson v Secretary of State for Communities and Local Government [2015] EWHC 20 (Admin).
John Martin
