Hatfield, Emma (2013) Concealing development - Did we really need section 124? Journal of Planning and Environment Law (1). pp. 19-28. ISSN 0307-4870

Section 124 of the Localism Act 2011 (the “Localism Act”) is a direct response to two high profile cases, R (on the application of Fidler) v Secretary of State for Communities and Local Government [2010] (“the Fidler case”) and Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] (‘the Beesley case”). Both cases involved the deliberate concealment of unauthorised building and both attempted to rely on section 171B of the Town and Country Planning Act 1990 (the 1990 Act) claiming the Local Planning Authorities (“LPAs”) were time barred from taking action as more than four years had passed since the date of the breach.

Section 124 gave LPAs the power to apply to the Magistrates Court to take planning enforcement action outside of the normal four and ten year time limits in situations where there may have been a breach of planning control involving concealment. LPAs may apply to the Magistrates Court for a planning enforcement order (“PEO”) within six months from the date of knowledge of evidence of the apparent breach providing they are able to satisfy the court, on the balance of probabilities, that the apparent breach has been deliberately concealed and that the making of an order is just to do so.

Whilst the Government’s intentions may have been valid, was their response? Is section 124 really the answer in closing the loophole these cases exposed? Alternative solutions do exist, including better implementation of the 1990 Act, the use of other existing legislation and applying public policy arguments used in the Beesley case. All of which would safeguard the limitation period under the 1990 Act. This then raises the question did we really need section 124 in the first place?

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