Planning enforcement: deliberately concealed development after Welwyn

A farmer is challenging a decision in a well-publicised case surrounding the landmark Supreme Court ruling in Welwyn Hatfield. The final outcome is expected to provide guidelines for how councils should go about taking enforcement against development which they suspect has been deliberately concealed. Planning expert Ben Garbett discusses the implications.

Planning enforcement before Welwyn

Before the Supreme Court judgment in Welwyn, a person could profit from their own wrongdoing by taking active steps to conceal unauthorised development in order to avoid detection by enforcement officers. The 4-year and 10-year ‘enforcement’ time limits were treated as absolute.

In Welwyn, Mr Beesley deceitfully obtained permission for a barn, but then built a house only made to look like the consented barn. He lived in the dwelling for more than 4 years before a lawful development certificate was sought.

The Supreme Court ruled that Beesley’s ‘positive deception’ was contrary to the public interest and should not be rewarded. It was unthinkable that Parliament should have intended that the normal enforcement process would be frustrated in such circumstances, and so the 1990 Act was re-interpreted so that the limitation periods did not apply.

After Welwyn

Welwyn was a ‘truly egregious’ case, but the same principle is often now applied in far less shocking, and even fairly routine, enforcement cases. This method of enforcement will be available whenever there is evidence of a positive attempt to mislead the authority, either by words or some conduct, in ways which are designed to undermine the proper functioning of the planning process.

Planning Enforcement Orders (PEOs)

Since 6 April 2012 (a year after the judgment in Welwyn) planning authorities have also been able to apply to the Magistrates’ Court for a Planning Enforcement Order (PEO) which extends the time period for taking enforcement action. The Magistrates’ Court may grant a PEO where, on the balance of probabilities, the breach or matters constituting it have been deliberately concealed “to any extent”, and where it is “just” to grant the PEO having regard to all the relevant circumstances.

The initial application must be made by the authority within 6 months of it acquiring the knowledge sufficient to justify enforcement action.

Jackson v SSCLG

Mr Jackson’s case concerned a barn which had been converted to residential use initially without the planning authority’s knowledge. The authority had chosen not to seek a PEO when this was revealed.

In the High Court Mr Jackson argued that the Welwyn principle did not survive the enactment of the PEO regime since the ‘mischief’ in Welwyn had now been fully addressed by Parliament with the creation of this new comprehensive statutory code, including appropriate safeguards. There was no longer any room for importing a different meaning to the ordinary language of the modified 1990 Act such as to allow enforcement against concealed development by some other means.

Postscript: What now?

Mr Jackson was unsuccessful in the High Court, but the case proceeded to the Court of Appeal this month, along with a similar case (Bonsall v SSCLG). For now at least, planning authorities may opt to choose between Welwyn enforcement and making an application to the Magistrates’ Court within 6 months of acquiring the requisite knowledge.

However, if Mr Jackson is ultimately successful, then it will be impossible for authorities to enforce in concealment cases beyond the expiry of the 4-year or 10-year time limit if it did not make a timely application to the Magistrates’ Court. Until these matters are clarified by the court, planning authorities would be well advised to apply for a PEO in all such cases or else risk being ruled out of time.

Note: Keystone Law is acting for the appellants, Mr Jackson and Mr Bonsall. An update will be provided once judgment is handed down.