My Lords, probing Amendment 276, and Amendments 278 in 279, are in my name and that of the noble Earl, Lord Devon, who is regrettably unable to be with us today. Apart from declaring an interest as a property owner, I must also explain that I have in the past been threatened with enforcement proceedings—so guilty as charged, or perhaps not guilty as charged. I am very grateful to a number of planning practitioners who explained some of the finer points of all this to me.
These amendments relate to Clause 107 and refer to what is known as the four-year rule. The current position is that, if works to a property have been undertaken more than four years previously, the owner is immune from enforcement action by the local authority. The equivalent period for changes of use, which of course may be harder to spot, is 10 years. A minimum of 10 years unchallenged enjoyment of both works and change of use is required before a lawful use certificate can be claimed. If you like, the entitlement at that stage becomes absolute.
I should add that, for works or changes of use to a listed building or, I think, for one in a conservation area, time does not run against the enforcing authority, and so protection of heritage is not an issue. Furthermore, works of development that are done secretively or by concealment are, I believe, also not protected by the four-year rule. So the building of a house within the confines of an agricultural barn, as happened in one rather infamous case, would not escape.
The system has operated for many years, quite successfully as far as I know. In the most recent review of the arrangements, the four-year cut off remained unamended. My own sense is that, if works have not been spotted after four years, it is quite unlikely that they will be spotted more readily in years five to 10. Indeed, one might conclude that, if it is that unobtrusive, it should scarcely be a planning concern anyway. It is more likely that it will crop up to ensnare an unwary owner who makes a subsequent application and some historic non-compliance is spotted at that stage.
The four-year rule also recognises that planning is complex, with many pitfalls for the unwary, and that it is not necessary or desirable to micromanage planning uses of land and buildings. For instance, erection of deer fencing, construction of ponds and the placing of certain structures on land may in some cases require consent but in others they do not. A movable item nearly always does not trigger a planning issue but leaving it in the same place for too long does.
Many households think that a permitted development right absolves them of the need for any consent at all. I believe it is government policy to reduce burdens on householders. Furthermore, where a local planning authority has issued what is known as an Article 4 direction, removing permitted development rights for certain types of development, owners may not be aware of this or be made aware, even in a purchase situation. As in one instance which occurred in my professional career, a shopkeeper might find that they are subject to enforcement procedures for displaying an internally illuminated sign fixed to the interior of their shop window glass, but not if it is a foot or two further back. The rules are opaque, convoluted and may be interpreted differentially per authority. As I see it, the four-year rule served to prevent this becoming a more serious issue.
But Clause 107 would remove this protection. I know of no justification for doing this, nor any public consultation that underpins that decision to include it in the Bill. I think that most householders, and possibly quite a few lenders, would view this with concern. But the removal would have, in my opinion, a somewhat more sinister side-effect. I know of instances whereby an annoyed builder has set out to shop a property owner who did not award him a contract of works, or shopped the successful contractor—or a neighbour averring to the authorities that works in non-compliance are taking place, either because of neighbourly detestation or, as in one case known to me, because the neighbour took umbrage about the builders’ vehicle parking and plant-unloading arrangements in the street outside their home. So to leave the door open for an additional six years to this sort of risk of a snooper’s charter is socially, economically and administratively undesirable.
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Other noble Lords may refer to specific instances that I have not covered, but one that seems to me to apply is the conversion of attic space into living accommodation, where permitted development may allow it and half the rest of the street may have done it. That might be one particular instance. The objection might be not the principle of the conversion but about the materials and finishes, hidden away in some local design code, with a footnote about not using, say, PVC, about which the householder could not normally be expected to know, having never been notified of any such requirement. Why would they inquire, given every other similar local project in the street had used PVC? I use that just as an example.
Planning should not be the stuff of oppressive or intrusive regulatory control, save in areas where it is necessary. In any event, I have severe doubts whether local planning authorities have the resources to make any better use of the enlarged timeframe. So these amendments attempt to modify the effect of Clause 107 and provide a better degree of fairness and balance.
There is a specific issue about dwellings and, especially as I perceive it, the lack of planning compliance of works not always being identifiable on normal property searches. It may not be at all clear how long some feature has been in place. Amendment 276 attempts to address this. I mentioned the lack of consultation, and Amendment 278 seeks to address that. I think that
there should be consultation, and an analysis of responses, before Clause 107 is put in place. What happens to a property with unconsented works carried out five years ago, where under the existing rules they would be immune, but under the new rules, introduced by this Bill, they would not? There is no provision in the Bill for transitional process. That needs clarifying, and Amendment 279 seeks to do just that.