In R (on the application of Bonsall) v Secretary of State for Communities and Local Government [2014] EWHC 2022 (Admin) the local planning authority (“LPA”) issued the relevant enforcement notice, alleging a change of use of the barn without planning permission to residential use, on 3 May 2013. At that point in time, the LPA may or may not have been fully aware of the deception on the part of the landowner. However, an alternative procedure would have been available had they been so aware.
In part as a reaction to the decisions in Welwyn Hatfield and Fidler, section 124 of the Localism Act 2011 inserted into the Town and Country Planning Act 1990 (“the 1990 Act”) new sections 171BA to 171BC with effect from 6 April 2012. 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 1990 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”.
The LPA must first have sufficient evidence of an apparent breach of planning control to justify applying for a planning enforcement order 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 planning enforcement order 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 order having regard to all of the circumstances. The effect of the order 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 order is made, or when any appeal against the order has been finally dismissed.
John Martin
