Good faith and planning enforcement

Does good faith still have a role within planning enforcement? David Bird analyses a recent High Court ruling.

Amendments were made to the Town and Country Planning Act 1990 by the Localism Act 2011 in relation to enforcement of breaches of planning control.

The amendments were specifically designed to provide local planning authorities (LPAs) with enforcement powers for breaches of planning control that have fallen outside the limitation period where normally the right to undertake enforcement action would be lost by LPAs.

The amendments provided LPAs with a procedure, known as a Planning Enforcement Order (PEO), to take enforcement action against a breach of planning control, outside of the normal limitation periods, if it appears that the breach had been concealed.

A Supreme Court decision had previously provided for a principle of good faith in relation to planning enforcement.

Case facts

In Secretary of State for Communities and Local Government v Welwyn Hatfield Council, the landowner had erected a building that outwardly facing had the appearance of a barn but was internally designed to be a dwelling. Once the time limits for enforcement action had passed, the landowner then applied for a Certificate of Lawfulness of Existing Use or Development (CLEUD) designed to establish that the use of the building as a dwelling, the LPA refused this application.

The Supreme Court concluded that as a matter of public policy, the landowner would not be able to apply for a CLEUD, as the actual use of the building had been concealed from the LPA and the landowner should not be able to benefit from such deception.

The case of Jackson v Secretary of State for Communities and Local Government [2015] EWHC 20 (Admin) considered whether the PEO procedure created in the Localism Act 2011 was enacted to replace the public policy principle derived from the Welwyn case.

In the Jackson case, the landowner had concealed the use of a barn as a dwelling and then applied for a CLEUD. The LPA rejected the application for a CLEUD relying on the Welwyn principle, on the basis that the landowner had deliberately concealed the change of use of the barn to a dwelling.

The landownder appealed against the LPA's decision on the grounds that the PEO procedure had repealed the Welwyn principle. However, the High Court concluded that the changes brought about by the Localism Act 2011 did not abolish the Welwyn principle.

Court decision

The Court determined that the Welwyn principle was not limited solely to criminal acts but was designed to cover a broad range of wrongdoings. The Court noted that the application of the PEOs were limited to enforcement actions by LPAs, whereas the Welwyn  principle extended to applications for CLEUD. Further, the Welwyn principle covered a greater range of misdemeanours such as "bribery, coercion or menaces", in contrast to the PEO procedure which merely covered matters of concealment. Consequently, the Court stated that the impact of a finding that the PEO procedure would replace the Welwyn principle would result in a gap in the planning enforcement regime; therefore, the Court concluded that the PEO procedure had been enacted in order to give LPAs additional enforcement powers.

The High Court also considered the scope of the Welwyn principle and determined that the type of conduct that would fall foul of that principle would depend on the individual facts of the case. The Court expressed the opinion that this principle was not solely restricted to serious misconduct but that there was a "spectrum of wrongdoing."

Summary

The High Court's ruling has broadened the enforcement powers that the LPAs have available when dealing with misconduct in relation to planning control. It reinforces the public policy principle that individuals should not benefit from their wrongdoing. The Court supported the notion that the Welwyn principle sits alongside the PEO procedure and also that it does not solely apply to exceptional cases.

LPAs have been provided with greater powers in their pursuit of enforcing breaches of planning control as the Court's judgment gives the LPAs the power to reject applications for CLEUD where the application is based on misconduct or deceit of the applicant.

David Bird is a Senior Associate at Veale Wasbrough Vizards. He can be contacted on 0117 314 5382 or This email address is being protected from spambots. You need JavaScript enabled to view it..