Court ruling highlights planning rules uncertainty

Regulations surrounding the planning permission required for demolishing unlisted, non-residential buildings could get tighter following a recent court ruling, writes Alister King-Smith, rural planning expert at Bruton Knowles.

The Supreme Court ruling last month in favour of enforcement action against a concealed dwelling in an agricultural building, Beesley barn, endorses the clamping down approach set out in the Localism Bill (see below).

Farmers must now take stock of their use of property and development activity, before proposed new planning powers being introduced by the Bill, enable Local Planning Authorities to pursue breaches of planning control long after the protections traditionally afforded by the four and 10-year rules.

The Supreme Court ruled in favour of enforcement action against Mr Beesley who had built a hay barn with consent for agricultural storage, then fitted the building out as a residential dwelling.

His application for a change of use certificate after four years ultimately failed as the Supreme Court said his deceptive actions did not fall within the literal wording of the legislation – s.171B(2) – as it had only ever been used as a dwelling so no change could be applied for. But more importantly the court went on to say that even if it had fallen within the wording of s.171B(2) his deception took him outside of its scope.

This Supreme Court ruling shows that we are very likely now to witness the introduction of the ‘concealed breaches’ provision in the Localism Bill, as it works as a clear endorsement of the need to tighten legislation.

Given that these powers have been introduced in response to extreme breaches of planning, such as the Beesley barn case and the Fidler case in 2010 – where a mock castle home was built without planning permission at Honeycrock Farm and hidden behind hay bales – the expectation is that LPAs will primarily use these powers for those major breaches that have been concealed.

However it is possible to imagine grievances triggered by discontented neighbours forcing LPAs to take action against smaller concealed breaches, so owners would be wise to review and remedy now where possible.

Under the new proposals, the LPA must show the magistrates court that they only became aware of the breach within the last six months, showing that until then the activity had been concealed from them. It is expected that this definition of concealment may offer some scope for appeal, but this will only become clear once the legislation has been introduced and actively applied to cases.

Once the court has issued a Planning Enforcement Order the LPA will have up to 12 months to take action and we expect will be able to pursue the traditional remediation and penalties from reinstating the original use of a building to potentially pursuing demolition of non permitted development or possible fines in the case of the more extreme breaches.

The Localism Bill
The Bill, which is due for its third and final reading in the Commons shortly, and is due to become legislation by early 2012, will give LPAs the right to apply to the magistrates court for a Planning Enforcement Order if they become aware of a breach of planning control that has been concealed from them, irrespective of how long ago, within reason, this breach occurred.

At present the Town and Country Planning Act 1990 sets time limits on the taking of enforcement action. If a continuous breach occurs for either four years where unauthorised building development or change of use to a single dwelling occurred, or for 10 years in the case of all other changes of use, and no action had been taken by the LPA up to that point, with sufficient evidence to support their claim the owner can pursue a certificate of lawfulness to legalise this activity.

Alister King-Smith at Bruton Knowles can be contacted on 01452 880008.


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