Hidden development: are you safe from enforcement?

A Winchester-based fish farmer is challenging a planning inspector’s decision denying him lawful use of a barn which had been converted as a dwelling. The farmer’s son had lived on the top floor of the barn undetected for over four years. Represented by Keystone planning lawyer Ben Garbett, Mr Jackson recently won permission from a judge for a full hearing in the High Court on the basis that his alleged wrongdoing should not prevent him from claiming immunity from planning control despite a previous Supreme Court ruling in another landmark case.

If successful, the decision will force councils to apply for a special order from the magistrates’ court whenever taking action against unauthorised development which has been deliberately concealed.

Mr Jackson applied for a lawful development certificate for the dwelling, which was refused by Winchester City Council. Mr Jackson then appealed. By the close of the public inquiry the Council accepted Mr Jackson’s evidence that the barn had been occupied for more than four years. It claimed, however, that by effectively putting Council enforcement officials ‘off the scent’ he managed to evade detection and this deception meant the development could still be removed.

Ben Garbett from Keystone Law commented on the case:

“I am extremely pleased that the High Court has granted Mr Jackson permission to challenge the decision of the Secretary of State’s Inspector. Councils do have potentially far-reaching powers to deal with this issue, but those powers are simply not being used at present. There is no excuse – public policy does not justify authorities taking enforcement action ‘out of time’ if they fail to use the process which Parliament has prescribed. This means applying to the magistrates’ court in appropriate cases.”

The outcome of Mr Jackson’s appeal will be of enormous interest to anyone hoping to establish lawfulness for development at risk from enforcement on the basis it was deliberately hidden. We are currently receiving a large number of enquiries on these issues. Landowners who are keen to take advantage of the potential ruling are encouraged to take advice on the implications now.

Keystone Law has a vastly experienced and highly regarded team of planning lawyers who can advise on all aspects of the planning enforcement regime, and other complex planning matters generally.