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Deliberate concealment

Article first appeared in August 2014 NAPE newsletter.

 

 

Deliberate concealment and the Planning Enforcement Order

 

Following on from last month’s hot topic, the act of deliberate concealment and the Connor Principle has been in the news again and this time one of the main issues is whether or not a Local Planning Authority can rely on the Connor Principle if it has not sought a Planning Enforcement Order through the Courts.

 

Just to refresh our memories, the Localism Act 2011 inserted into the Town & Country Planning Act 1990 (within s171BA, s171BB and s171BC) is the regime under which local planning authorities can apply to the court for a Planning Enforcement Order which , if granted, would give the authority a 12 month period within which to take enforcement action, even if the relevant 4 or 10 year immunity period had expired. The Planning Enforcement Order can only be made by the Magistrates if they are satisfied that the breach had been ‘deliberately concealed’.

 

However, it appears that many Local Planning Authorities are not seeking Planning Enforcement Order before using, what they believe to be an act of deliberate concealment, as a basis for taking enforcement action even where the relevant 4 or 10 year immunity period has expired. In one recent case relating to an enforcement notice issued by Winchester City Council (link to the decision) against an unauthorised material change of use of an agricultural barn to a mixed use as an agricultural storage barn and a self-contained unit of residential accommodation, an appeal Inspector was specifically asked by the appellant’s advocate during the appeal inquiry about this process.  Having heard representations from both parties under the ground (d) appeal the Inspector took the view that:-

 

 

“In the event, the appellant’s argument, that he cannot be accused of deception judged by his intentions at the time, rather than his actions, is contradicted by the evidence before me. The Connor principle should therefore apply.  Accordingly, I conclude that there is nothing in the arguments put to me by the appellant, legally or as regards applying the authority of Welwyn Hatfield to this case, that persuades me that he should, in spite of the evidence, nevertheless benefit from the protection provided by s171B(2) of the 1990 Act. For these reasons, I conclude that the appeal should not succeed. I shall uphold the enforcement notice with corrections, as set out in the formal decision below.”

 

 

Following this decision, the landowner in question has now applied for a statutory review of the Inspector's decision on the basis that the LPA should have applied for a Planning Enforcement Order before serving the Enforcement Notice.  

 

In another recent decision (link to the decision) on an appeal against an enforcement notice issued by The Broads Planning Authority against a change of use an agricultural building to a single dwelling, a Planning Inspector accepted that the Connor principle can apply without an Enforcement Order being first obtained. an  

 

 

The Inspector in this case stated that:-

 

 

“At the start of the Inquiry, counsel for the appellants requested a ruling on whether the Broads Planning Authority could pursue the part of its case based on ‘deliberate concealment’ given that the Authority had not taken action in the Magistrates Court under section 171BA of the Town and Country Planning Act 1990, as amended. After hearing legal submissions from counsel for the

 

Authority, I ruled that, having regard to the decisions of the Supreme Court in the cases of Welwyn and Fidler, the Authority were not prevented in law from pursing this part of its case.”

 

 

It appears therefore, that until such time as directed otherwise by the High Court in the Winchester City Council case, that a Planning Enforcement Order is not necessarily required for a Local Planning Authority to issue an enforcement notice after the relevant 4 or 10 year period where they have evidence that deliberate concealment has taken place.  

 

 

Neill Whittaker

 

Ivy Legal Limited

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