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New Localism Bill Could Bring Chaoes to Property Markets- 21/02/2011
The new Localism Bill proposed by the coalition Government could bring uncertainty and chaos to both the residential and commercial property markets, where innocent purchasers could become responsible for the actions of a previous owner, according to a leading Midlands planning lawyer.
Niall Blackie, a Solicitor-Advocate and Partner and Head of Planning at West Midlands law firm FBC Manby Bowdler LLP, says that the new Bill could catch out concealed breaches of planning conditions such as: people living in houses with agricultural occupancy conditions, who have not said that they were not farming; people who have extended their houses without permission (especially a rear extension not visible from the road) and have not told the council; people who changed the use of storage buildings to industrial, or moved from light industrial to general, and are doing it behind closed doors; people who have traded happily in breach of hours of operation conditions.
Mr Blackie says: “Under the present Town and County Planning Act these are the type of cases where normally an immunity builds up after so many years, but by proposing to remove the time constraints from local planning authorities in seeking enforcement action against breaches of planning conditions, where the breach is ‘concealed’, and to make the change retrospective, the new Localism Bill will detrimentally affect these properties and bring massive uncertainty for new purchasers.
“Present owners would be forced to comply, potentially having to knock down unlawful extensions and reverting to previous planning conditions of use and operation, when they thought they were immune from enforcement,” says Mr Blackie, who is based in FBC Manby Bowdler’s Telford office.
“The new provisions are intended to prevent blatant planning control breaches, such as the people who built a house behind bales of straw, but at present the power they give to councils are so wide ranging, that it could lead to purchasers demanding that every breach of planning control is remedied or that the price is abated for the risk.
“It could also delay transactions while enquiries are being made about the planning status of a property, and increase the level of due diligence buyers would need to do before purchase, because there will no longer be a cut-off date. This could involve buyers incurring considerable expense and lead to the cost of taking out insurance against any unknown potential liability becoming prohibitively expensive.
“Many purchasers and their funders who acquire a property, rely on the fact that they will be able to trade in the same way as the previous owner, having immunity from action against a breach of any previous planning control. The new Bill means that they can no longer assume this is the case.”
According to Mr Blackie, the new Bill states that to obtain a magistrates' court order against breaches of planning control that would normally be time expired, planning authorities only need to show that the breach was concealed from them.
“He says: “Concealment is to be given a wide meaning; courts will only have to be satisfied that someone, perhaps a previous owner, had contributed, to even the partial concealment of any aspect of the apparent breach by their action or ‘inaction’.
“These provisions may be amended before the Bill becomes law, but as they stand now they could be applied to a property being bought today, so it is vital that people looking to acquire any new property and their legal advisers take them into account.
“It is possible that an application for a certificate of lawfulness, made now, before the Localism Bill becomes law, is the answer to some of these issues, and I and my team are able to prepare these,” concludes Mr Blackie.
With 35 partners, FBC Manby Bowdler is one of the largest law firms in the West Midlands. The firm has offices in Wolverhampton, Willenhall, Telford, Shrewsbury and Bridgnorth.