When public law meets conveyancing

The days when it was considered sufficient for a solicitor to send a prospective purchaser client copies of planning decision notices relating to the land to be acquired may be over. In light of recent developments it may also be necessary for a solicitor to consider the plans that accompanied the planning permission, seek information as to the length of time a building or a use of the land has subsisted, and to warn the client that, if the vendor has deliberately concealed information about his use from the local planning authority, there is a risk that a court will permit the local authority to take enforcement action against any breach of planning control in the future if this is discovered. So, when is this additional diligence needed?

For many years the law was, as summarised in R v Ashford BC ex p Shepway DC [1999] PLCR 12, when interpreting a planning permission, regard could only be had to the decision notice and any documents expressly incorporated therein, unless these gave rise to ambiguity. Then, in Barnett v SoS for Communities and Local Government [2008] EWHC Admin 1601, the High Court held (and this was subsequently upheld by the Court of Appeal [2009] EWCA Civ 476) that, when interpreting a full (as opposed to outline) planning permission for building works, the plans upon which the permission was based were as much a part of the permission as the decision notice, even if they were not incorporated by the decision notice.

However, the High Court in Stevenage BC v SoS for Communities and Local Government [2010] EWHC Admin 1289 held that, if the plans showed more development than described in the decision notice, then the permission could be interpreted as permitting that wider development too; and this notwithstanding that the publicity notices for the planning application described the application in the more limited terms of the decision notice.

Therefore, it may not suffice to send the client only the decision notice: the plans may be extremely important too.

Stevenage is also important for another point: that a subsequent planning permission for external works and works of internal sub-division to an existing building, unless expressly restricted by condition, may benefit from section 75 of the Town and Country Planning Act 1990. The whole building may be used for the purpose specified in the permission or, if no purpose is specified, for the purpose for which the building is designed (i.e. intended) unrestricted by the conditions of the original planning permission. Again, it will be important to look at the plans.

Concealment

Some of the numerous provisions of the Localism Act 2011 relate to planning enforcement. Previously the position has been that building works are immune from enforcement action (and thus lawful) once four years have elapsed since their substantial completion. In respect of a material change in the use of a building or land (other than use as a dwelling house, in respect of which a four-year period from the date of breach applies), or in respect of a breach of a planning condition, the relevant period is ten years from the date of breach. Section 191 of the 1990 Act allows a certificate of lawfulness to be obtained to confirm the lawfulness of an existing use or operations, and 'the lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed'.

Section 124 of the Localism Act inserts sections 171BA-C into the 1990 Act, and from 6 April 2012 a magistrates' court will be able to make a planning enforcement order permitting the local planning authority to take enforcement action, at any time within one year and 22 days of the court order, in relation to an apparent breach of planning control where: (1) application is made to the court within six months of, and including, the date on which evidence of the apparent breach of planning control (sufficient in the opinion of the local planning authority to justify the application) came to the authority's knowledge; (2) the court is satisfied, on the balance of probabilities, that the apparent breach, or any of the matters constituting the apparent breach, has (to any extent) been deliberately concealed by any person or persons; and (3) the court considers it 'just to make the order having regard to all the circumstances'.

While there is obviously no case law yet, plainly it will be of concern to clients not only whether building works or the present use of land have permission or are immune from enforcement, but, also, in respect of immunity, whether any breach has been deliberately concealed from the local planning authority before. The breadth of the words 'to any extent' in (2) above will be noted. As regards (3), it may be that an order will not be made where the land in question has, subsequent to the breach, been purchased by a bona fide purchaser. But it may also be necessary, given that the public interest is also involved, to show that due diligence was also undertaken at the time of purchase.

And just as the localism bill was progressing through parliament, the Supreme Court held in SoS for Communities and Local Government v Welwyn Hatfield BC [2011] UKSC 15 that, at common law, positive deception may also disentitle reliance on statutory time periods in respect of immunity.