In the not so distant past, it was possible to achieve a lawful status for an unauthorised development, notwithstanding concealment and deception. Now, following judgments and amendments to legislation, local planning authorities (LPAs) are able to take enforcement action against unauthorised development where there has been concealment, even though the immunity period may have passed.
Development without planning permission (and not being permitted development under the General Development Order 2015) constitutes a breach of planning control which the LPA can enforce against, unless the development has become lawful. Such development can become lawful, and immune from enforcement action, if no enforcement action is taken within the requisite period. This is usually four years for operational development or ten years where the breach is a material change of use.
In the past, an owner could deliberately conceal a breach of planning control so that it would achieve immunity after the necessary passage of time and thus achieve lawfulness. This changed in 2011, with the decision in the case of Welwyn Hatfield BC v Secretary of State for Communities and Local Government.
In this case, the owner obtained planning permission to erect an agricultural barn. However, he created a house inside it and lived there for four years and then applied for a Certificate of Lawful Development for the residential use.
This was refused but the Planning Inspector granted it on appeal by the land owner. Eventually, the LPA succeeded in the Supreme Court, arguing that Parliament could not have intended owners to obtain planning permission by deceit. This case established the “Welwyn principle” which is a four limb test, and if satisfied, provides that deception will take the matter outside of Section 171(B) of the Town & Country Planning Act 1990, being the section which allows immunity from breach of planning control after the passage of sufficient time. The four limbs of the Welwyn principle test are :
- Positive deception must exist;
- The deception was directly intended to undermine the planning process;
- The deception did undermine the planning process;
- The wrongdoer would profit directly from the deception if the normal limitation period enabled them to resist enforcement.
Therefore, even if development has, by virtue of the passage of time, accrued lawfulness, the LPA can rebut this by establishing the Welwyn principle.
This occurred in the notorious case of Jackson v Secretary of State for Communities and Local Government . This involved another agricultural barn which had been the subject of a change of use to include a unit of residential accommodation. The LPA issued an Enforcement Notice requiring removal of the residential fixtures and the restoration of agricultural use to the whole of the building. The owner appealed, arguing that the use had become lawful because it had been carried on for in excess of ten years. The LPA accepted that the use had continued for that period but successfully appealed, on the grounds of the Welwyn principle.
The court held that not all four limbs of the Welwyn test are required to be present, as long as concealment is proved.
This case also decided that the new sections (Section 171(B) and (C) of the Town & Country Planning Act) which introduced the “Planning Enforcement Order” (PEO) did not replace the Welwyn principle. These new sections were introduced into the Act by the Localism Act 2011 to give LPAs the power to ask a Magistrates’ Court to issue a PEO if it suspects concealed development. Thus, the provisions are not a replacement for the Welwyn principle but are supplementary to it.
Although the law surrounding concealment is now clear and more robust, it will be interesting to see what sort of acts and omissions are now found to constitute concealment. This will be the next battleground for those trying to circumvent the planning system!