Cases involving concealment – where are we now?

Steven Bell of nplaw reports on a recent planning inspector's decision that may have clarified some of the key issues in cases of deliberate concealment.

Issues of deliberate concealment are a headache for any planning department. Where there is the potential to argue deliberate concealment then the inevitable question will be whether you are obliged to first apply for a planning enforcement order and do you really have to argue planning matters before a Magistrates’ Court? A recent Inspector decision has perhaps clarified matters in this regard.

Planners will be aware that the Town and Country Planning Act 1990 was amended to insert sections 171BA to s.171BC. These sections enable a local planning authority to apply to the Magistrates' Court for a planning enforcement order (whether or not the usual time limits for enforcement action have expired) where an apparent breach of planning control has been deliberately concealed.

The recent Inspector decision, dated 24 July 2014, deals with an appeal against an enforcement notice served by the Broads Authority against the owners of a building they had been using as a single dwellinghouse. 

The facts are that the appellants were living in a building which could only be described as a ‘pig rearing building/barn’. From the outside there was little if any evidence to indicate that anyone was using the building/barn as a single dwelling house. There were no windows in the outside walls of the overall building/barn (i.e. visible from the outside) and little if any domestic paraphernalia outside to give away any single dwelling use.

The appellants argued that they had not been covert in their works to the pig rearing building/barn nor had wilfully deceived anybody nor falsified any record to make their case. The Broads Authority raised a number of administrative or legal duties where the appellants had failed in their responsibilities: failed to notify building control of the building works; failed to register for council tax; failure to register for electoral purposes; failure to register the address with Royal Mail. Counsel for the appellants submitted that these actions were omissions rather than conduct that was deliberately misleading.

The Inspector stated: "Nevertheless, when looked at in the round it also appears to me that the appellants embarked on an explicit strategy to keep the presence of the residential unit that they had formed in the Barn secret from the Council….".

At the inquiry counsel for the appellants requested a ruling as to whether the Broads Authority could pursue part of its case based on deliberate concealment given that the Broads Authority had not taken action in the Magistrates Court under section 171BA of the Town and Country Planning Act 1990 (to obtain a planning enforcement order).

The Inspector, in his decision letter, states;

"…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 pursuing this part of its case."

The Inspector concluded as follows: "The nature of the works undertaken suggest to me that from the onset the internal building was positively designed to be concealed for the necessary period and that the appellants had a much different end result in mind for the buildings….Whilst it appears to me that the appellants have not lied or told falsehoods to get their way, they have embarked on a complex, well thought out and interlinked series of actions over time to deliberately conceal their intentions from the Authority, and the Council, and have not merely let events unfold in a passive way.

"On this basis, I find that the appellant’s conduct and actions have been to deliberately mislead the Authority and amount to positive deception…I conclude on this ground that there is significant doubt over the continuous use of the Barn as a single dwelling over the relevant period to the extent that the provisions of s171(B)(2) of the Act have not been demonstrated to be satisfied on the balance of probabilities. Further, as the appellants’ actions have sought to deliberately deceive the Authority in a positive way, they should not be able to benefit from the protection of s171B (2) in any event….".

It therefore appears to be the case that you are not obliged to first pursue a planning enforcement order application to the Magistrates' Court in cases concerning deliberate concealment and can argue your case before an Inspector on appeal. It will of course save time in having to explain the intricacies of planning law to the Magistrates.

We watch this space with interest as it will only be a matter of time before the issue is considered by the higher Courts on appeal.

Steven Bell is a solicitor at nplaw.