The landmark Supreme Court case of Welwyn Hatfield BC v Secretary of State for Communities and Local Government in 2011, confirmed the principle that property owners who had deliberately concealed planning breaches from Local Planning Authorities, were not able to benefit from the 4 year limitation period as set out in s.171B Town and Country Planning Act 1990. This was an important decision for planning enforcement officers as it confirmed they could take action against property owners who had deliberately attempted to deceive them and prevent such owners from benefiting from their wrongdoing (the so-called ‘Connor’ principle).
2012 saw sections 171BA-171BC inserted into the Town and Country Planning Act 1990 under the provision of s.124(1) of the Localism Act 2011 enabling local authorities to apply to the Magistrates’ Court for Planning Enforcement Orders. Ostensibly, it was up to each local authority to consider whether they would seek a Planning Enforcement Order or simply rely on the Connor principle (as confirmed by the Welwyn Hatfield case). A number of local authorities continued to rely on the Connor principle as confirmed in the Welwyn Hatfield case, with only a small number opting for the Planning Enforcement Orders, no doubt due to the burdensome nature of convincing Magistrates who may not have an understanding of planning laws.
Previously, we reported that a High Court challenge had been made on this very point.
The case concerns Nigel Jackson, a trout farm owner from Sutton Scotney in Hampshire who was served an enforcement notice in June 2013 for the 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.
The barn was initially granted planning permission in March 2004 but was not erected in accordance with the permission. Retrospective planning permission for it was granted in July 2005. Dormer windows and roof lights were then added without planning permission in late 2007 to early 2008 which were discovered by Winchester City Council during a site visit to the property to investigate an allegation of residential use. Mr Jackson then made a planning application to regularise the breach which was granted in August 2009 but did not notify the council of the residential use of the agricultural building. In April 2013 Mr Jackson made an application for a Lawful Development Certificate for the residential use of the first floor of the barn, which he stated had been a dwelling for more than 4 years. This was refused by the Council on the grounds that they weren’t satisfied the period had been more than 4 years. Mr Jackson made a second application in early June, shortly after which the Council issued an enforcement notice. In the September the application was refused on the same grounds as the first but backed up with the Welwyn Principle.
The Inspector when considering the enforcement notice at appeal, made reference to the deception alleged by the Council and noted that Jackson had referred to the building as agricultural use in correspondence regarding the windows and roof lights which included the period he was then contending that residential use had begun. The Inspector also noted that Jackson had fitted out the barn with living accommodation in excess of what one would expect for the intended use as a recreation room for the staff at the farm. Jackson submitted in his statement that the Connor Principle could not legally be relied upon as they had not sought remedy under ss. 171BA-BC of the 1990 Act. After much deliberation, the Inspector concluded that they could and upheld the notice.
In the case heard last month, Nigel Jackson challenged the decision of the Secretary of State to apply the Welwyn Principle. He contended that the enactment of Parliament introducing Planning Enforcement Orders meant that the Welwyn Principle could no longer be relied on and that Local Authorities were obliged to apply to the Magistrates’ court for a Planning Enforcement Order.
Mr Justice Holgate supported the Inspector’s application of the law and concluded that the language used by Parliament was not clear enough to conclude that the Welwyn Principle could no longer be relied on, stating that there was no express amendment of s.171B to disapply the effect of the Supreme Court decision in Welwyn Hatfield. He further concluded that the provisions of s.171BA-BC of the Town and Country Planning Act 1990 widened the powers conferred on Local Authorities and the Planning Enforcement Order was meant as a supplementary procedure, not an exhaustive replacement of the Welwyn Principle.
This is an important decision for Local Planning Authorities who will no doubt be feeling rather reticent at the prospect of having to persuade a Magistrate every time they need to take action in cases of deliberate concealment. It is far easier to have these points considered by an Inspector who is familiar with the concepts and complicated rules surrounding planning law. However, as Mr Justice Holgate gave leave to Mr Jackson to appeal his decision in the Court of Appeal owing to the importance of the statutory interpretation raised, we must wait in eager anticipation for a final resolution to the matter.