Followers of our articles will be aware that we have been closely observing the passage of the Levelling Up and Regeneration Bill through Parliament and that we have been involved in seeking amendments to Clause 107 of the Bill that will abolish what is colloquially referred to as the four-year rule. For a reminder of the issues see here and here.
The Bill is currently moving through its committee stages in the House of Lords and the planning enforcement measures, including Clause 107, were debated yesterday, 24 April. For those who are interested in the detail, the Hansard report is here. The debate starts at column 1026 and the Government response from Earl Howe, the Deputy Leader of the House of Lords, starts just below column 1033. If you prefer to watch Earl Howe in action, you can do so here.
The upshot of the debate is that Clause 107 has survived intact and the four-year rule will therefore disappear from the statute book in England when the Act receives Royal Assent which is expected to be later this year.
One of our concerns about Clause 107 and related provisions in the Bill has been the lack of consultation. Earl Lytton’s Amendment 278 was seeking to require a period of consultation before any changes are made. That was brushed aside by Earl Howe who said that the Government had engaged with “key stakeholders” during the preparation of the Bill and that those “key stakeholders” have said that two timescales for enforcement can unnecessarily complicate cases. He said that making the time limit 10 years for all breaches of planning control in England will create greater certainty and consistency for all parties involved in the planning enforcement process and ensure that the opportunity to commence enforcement action is not inadvertently missed. The same “key stakeholders” told the Government that they need the new package of planning enforcement measures to carry out their job more effectively.
None of what was said in the debate has changed our view that “key stakeholders” (aka local planning authorities/planning enforcement officers) already have very extensive and, in some cases, Draconian, enforcement powers and that, with access to near real-time geospatial information and electronic reporting by concerned members of the public, there is no good reason why the opportunity to commence enforcement action should be “inadvertently missed”.
Our greatest concern around the abolition of the four-year rule has been the lack of any transitional measures in the Bill to protect breaches of planning control that are or will be immune from enforcement on the date on which the new provisions become law. In the absence of transitional provisions, breaches of planning control that would have been immune from enforcement under the four-year rule would have been susceptible to enforcement action for the remainder of the relevant ten-year period. It was that injustice that was addressed by Earl Lytton’s Amendment 279. In response to that amendment, Earl Howe confirmed that the Government will make transitional provisions in regulations to ensure that breaches of planning control that are currently immune from enforcement action will remain immune following the passage of the Bill. That at least should provide reassurance to those who would otherwise have been adversely impacted.
The question remains as to what should be done by anyone seeking to rely on the four-year rule? We are aware that some practitioners have been advising that applications for certificates of lawfulness in reliance of the four-year rule should be made urgently before the law changes. Our advice has been the opposite. That is because, in the absence of any transitional provisions, it is easy to see how the information contained within a certificate of lawfulness application, which will usually include a statutory declaration setting out the factual matrix, could be used by a local planning authority to take enforcement action against breaches of planning control that would have been caught by the change in the law.
Until such time as we have seen the transitional provisions and the regulations that will bring them into effect, our advice remains not to make an application in reliance on the four-year rule. However, now that we have Earl Howe’s reassurance that breaches that are immune from enforcement will remain so, there is no reason not to prepare to make such an application after the regulations have been introduced.
We can, of course, expect there to be nothing in the transitional provisions that will assist in cases where there have been breaches of planning control that are approaching but have not passed the four-year deadline before the commencement date of what will be the Levelling Up and Regeneration Act. All those who find themselves in that category and who can not or do not wish to seek to regularise the development or change of use that has taken place will have no option but to wait out the ten-year period and hope that the local planning authority inadvertently misses the extended deadline for taking enforcement action.