Following yesterday's Supreme Court ruling in the barn disguise case the government should rethink the need for the Localism Bill's proposed measures on concealment, Harry Spurr, a barrister in Hogan Lovells planning team, has pointed out to me.
Alan and Sarah Beesley had attempted to use a legal loophole that grants immunity from eviction to homeowners who have lived in a property for more than four years - even if they failed to obtain the correct planning permission.
Yesterday, Lord Mance said that because what had been built was not the barn that had been permitted, but a dwelling-house the four-year immunity period had not been triggered and, in any event, Beesley's "dishonest" conduct took him outside the scope of the provisions.
Spurr said the judgment raises questions about the need for the Localism Bill's proposed measures on concealment.
"The purpose of these proposals - to allow an additional enforcement window where 'concealment' has taken place - is ostensibly to address the loophole that the Supreme Court has just closed.
"These proposals have been the subject of considerable controversy, principally because of fears that they go too far ... and render perpetually liable to enforcement, not only those cases involving deliberate deception such as Beesley, but in theory almost any casual breach of planning control where no active steps are taken to draw the matter to the attention of the council.
"Not only is this arguably draconian, it could present significant logistical difficulties in commercial property transactions at due diligence stage. Despite this, and despite much lobbying from the industry, the Government has shown little inclination to rethink it.
"Yesterday's judgment, by contrast, draws a distinction, in the spectrum of wrongdoing, between the case involving elaborate deceit, and the much more common casual, but undisclosed, breach of planning control.
"As of yesterday, the former will be caught, the latter not. This, it will seem to many, is a much more measured and proportionate solution to the problem than the mechanism proposed by the Localism Bill. The question is whether the Government will now use the opportunity to rethink things. Many in the industry will hope so," he said.
Photo by Jennifer Murawski via Flickr.