Concealment: High Court confirms Welwyn has not been replaced

Background to concealment

Local planning authorities may take enforcement action where development appears to have taken place without planning permission or where conditions attached to a planning permission have not been complied with. In the case of the change of use of a building to a single dwellinghouse, once the unauthorised use has continued for four years without any enforcement action being taken the development becomes immune from enforcement. However, this four-year limitation is not available where the breach of planning control has been deliberately concealed only for persons to then "triumphantly reveal" a dwellinghouse immediately after the four years has expired.

In the case Welwyn Hatfield Council v Secretary of State for Communities and Local Government the Supreme Court established the principle that the normal period for enforcement did not apply to persons who deliberately and positively deceive the local planning authority, directly intending to undermine the regular operation of the process by concealing their development. One of the most notable concealment cases was Fidler v Secretary of State for Communities & Local Government, where Mr Fidler had used a mountain of straw bales to hide the construction of a house until the four-year period had expired. The court found that the level of deception was just as serious as the Welwyn Hatfield case, ("a paradigm case of deception") and found a way around the 4 year rule by saying that the operations were not complete (and therefore the 4 year period had not started to run) until the straw bales had been removed.

In light of these two cases, Parliament enacted Section 124 of the Localism Act. This Section gives the local planning authority a power to apply to the magistrates court for a planning enforcement order ("PEO") where, on the balance of probabilities, the apparent breach has been deliberately concealed and the court considers it just to make the order having regard to all the circumstances.

Jackson v Secretary of State for Communities and Local Government

Mr Jackson, a trout farmer, had challenged the Secretary of State's decision to uphold an enforcement notice served by Winchester City Council alleging change of use from an agricultural barn to a residential dwelling. The main question arising out of the Jackson case was whether the statutory PEO code had replaced the principles laid down in Welwyn. The court concluded that Welwyn had not been superseded by the enactment of the provisions of the Localism Act 2011. In particular, the court could not detect any intention to enlarge the scope of the four-year time limit to make it subject to the PEO code or to disapply Welwyn, such that concealment could be dealt with only by that code.

The Jackson decision should be welcomed by local planning authorities as this confirms they have two routes available to them in concealment cases. The authority can either apply to a magistrates court for a planning enforcement order or, in cases of deliberate concealment, rely on Welwyn to argue their case before a Planning Inspector in the High Court.

Read the full judgment here:

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