Town and country planning – Enforcement action – Limitation – Appellants building barns with planning permission but then internally converting them to residential use in breach of planning control – Whether possible to bring enforcement action after expiry of four-year limitation period in section 171B of Town and Country Planning Act 1990 where appellants deliberately concealing breach – Application of principle in Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] UKSC 15; [2011] 2 EGLR 151 – Whether principle displaced by enactment of provisions concerning applications for planning enforcement order (PEO) permitting enforcement action outside time limits in section 171B – Appeal dismissed
In each of the two joined cases, the respondent’s planning inspector had rejected the appellant’s challenge to an enforcement notice issued by the local planning authority after finding that the appellant had deliberately concealed the relevant breach of planning control. In doing so, the inspector applied the principle, established by the Supreme Court in Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] UKSC 15; [2011] 2 EGLR 151, that deliberate concealment of a breach of planning control prevented reliance on the four-year limitation period for enforcement under section 171B(2) of the Town and Country Planning Act 1990. The inspectors’ decisions were subsequently upheld by the High Court in proceedings brought under section 289 of the 1990 Act.
Each of the two cases concerned a barn which had originally been built with planning permission but which, in breach of planning control, the appellant had later converted into a dwelling and used for residential purposes without the local planning authority’s knowledge. In each case, the enforcement notice was issued after the appellant, relying on the expiry of the four-year limitation period for enforcement, applied unsuccessfully for a certificate of lawfulness of use of the building as a dwelling under section 191 of the 1990.
Shortly after the decision in Welwyn, by section 124 of the Localism Act 2011, parliament had inserted new sections 171BA to 171BC into the 1990 Act whereby, in a case of deliberate concealment, a local planning authority could apply to the magistrates’ court for a planning enforcement order (PEO) permitting enforcement action outside the time limits in section 171B. In the second case, the High Court held that the enactment of the PEO provisions did not displace the Welwyn principle or mean that concealment could only be dealt with under that code: see [2015] EWHC 20 (Admin); [2015] PLSCS 10 (Jackson). The appellants appealed.
Held: The appeal was dismissed.
The decision of the Supreme Court in Welwyn was based on the interpretation of the statute in light of public policy. By reference to that public policy, the court had held that, on the true construction of the statute, the time limits in section 171B did not apply in cases of positive deception. The court therefore was not relying on public policy to depart from the true meaning of the section, but rather reading the apparently unqualified language of the section as being subject to an implied limitation. Once it was recognised that the decision in Welwyn concerned the true meaning of section 171B, then the introduction of the PEA regime would not alter the position unless the introduction of sections 171BA to 171BC into the 1990 Act had changed the meaning of section 171B. However, there was nothing in the new sections, or in the legislation that inserted them into the 1990 Act, to suggest a legislative intention to change the meaning of section 171B as interpreted by the Supreme Court, despite the fact that parliament was fully aware of the Supreme Court’s decision and had ample opportunity to remove its effect, had it wished to do so, by way of an amendment to the Localism Bill during its passage through Parliament.
Further, nothing said by the Supreme Court in Welwyn itself suggested that it considered itself to be applying some form of short-term fix which would fall away once sections 171BA to 171BC were introduced. The court was concerned simply with the interpretation of the existing section 171B.
Maintaining the Welwyn principle did not have the effect of enabling the PEO procedure to be sidestepped or ignored. Although there was an overlap between the PEO procedure and the Welwyn principle, that overlap was far from complete. The PEO procedure was narrower than the Welwyn principle since it applied only where an apparent breach of planning control had been deliberately concealed, whereas the Welwyn principle extended to cases of dishonesty or criminality, such as bribery or coercion, which would not necessarily amount to deliberate concealment. Moreover, the Welwyn principle applied only to particularly serious cases, whereas the PEO procedure applied where an apparent breach of planning control had “to any extent” been deliberately concealed. There were good reasons why a local planning authority might find the PEO procedure attractive in an individual case, such as where the extent of concealment might be insufficient to engage the Welwyn principle, or in order to provide a short-cut to effective enforcement by obviating an appeal against an enforcement notice or simplifying the scope of such an appeal. There would also be cases in which there was real value in being able to rely on the Welwyn principle rather than going down the route of the PEO procedure. For example, a local planning authority might take enforcement action without having any reason to think that a concealment issue was likely to arise during any appeal against an enforcement notice, and therefore without having taken steps to obtain a PEO. If concealment should subsequently become an issue at a public inquiry into the appeal, it would be disadvantageous if the authority could not ask the inspector to deal with the deception at the inquiry by applying the Welwyn principle, and were required instead to recommence enforcement action, beginning with an application for a PEO.
Taking all the above considerations into account, parliament had not intended, by enacting the PEO provisions, to remove the effect of the decision of the Supreme Court in Welwyn in relation to cases of deliberate concealment. The PEO provisions had been included in the Localism Bill at a time when it was not known what approach the Supreme Court would adopt to section 171B, but, following the Supreme Court’s decision in Welwyn, the PEO procedure was left in the Bill and subsequently enacted as an alternative and additional, not an exclusive, means of permitting enforcement outside the normal time limit in cases of deliberate concealment. That result was consistent with the legislative objective of strengthening local planning authorities’ enforcement powers.
Paul Brown QC and Alexander Booth (instructed by Keystone Law) appeared for the appellants; Rupert Warren QC (instructed by The Government Legal Department) appeared for the respondents; the local planning authorities did not appear and were not represented.
Sally Dobson, barrister
