Hide and Seek

April 7, 2011

The law can sometimes seem a master of concealment, hiding itself away and cunningly eluding the attempts of increasingly senior courts to flush it from its lair. But the Supreme Court (as did its predecessor) is normally able to flush it out. The Justices then ‘find’ what the law had always been but no-one had apparently been able to spot before. Namely that the Emperor was in fact naked, although we’d all had him down as fully clothed.

Thus runs the traditional legal fiction of the common law i.e. that the judges ‘declare’ what the law is rather than create it. Others, more straightforwardly, (including the late, eminent Lord Reid) have accepted that judges do in fact make law. But whatever the rights and wrongs of this jurisprudential juggling, the judgments of senior courts clearly trump those of the lower.

And so it was in the endgame of the notorious ‘house in a barn’ case (see Secretary of State for Communities and Local Government v. Welwyn Hatfield B.C. [2011] UKSC 15 written up in Local Government Lawyer 6 April 2011). For the Supreme Court then ruled (contrary to the decision of the Court of Appeal on 29 January 2010) that a planning applicant who deliberately deceived the planning authority by obtaining planning permission for a barn which was in reality a dwelling-house was open to planning enforcement. He could not therefore rely on the ‘four year’ rule in section 171B(2) of the Town and Country Planning Act 1990 whereby no enforcement action may be taken after four years from the breach of planning control.

For in addition to the issues of legal construction canvassed and determined in the Council’s favour the Supreme Court applied the principle frequently bemoaned and intoned in the more disreputable drinking dens: ‘nullus commodum capere potest de injuria sua propria’ (no-one should be allowed to profit from his own wrong’.

In so ruling the Supreme Court has managed to align the law with public instinct. For it always felt wrong that someone who set out to deceive a public authority could get away with it and reap the benefit. That unease was expressed in the Court of Appeal, in particular by Mummery LJ, who had expressed strong disapprobation at ‘. . .a surprising outcome which decent law-abiding citizens will find incomprehensible’, namely that: ‘. . .a public authority, deceived into granting planning permission by a dishonest planning application, can be required by law to issue an official certificate to the culprit consolidating the fruits of the fraud.’

But whilst Richards LJ had found that the ‘. . . plain legislative intention is that, once the four year time limit is found to apply, it displaces the ten year time limit even if the situation could be analysed by another route as one to which the longer time limit also applied’, the Supreme Court would have none of it. For although (per Lord Mance) 'the four-year statutory periods must have been conceived as periods during which a planning authority would normally be expected to discover an unlawful building operation or use and after which the general interest in proper planning control should yield and the status quo prevail' nevertheless, positive 'and deliberately misleading false statements by an owner successfully preventing discovery take the case outside that rationale.'

So what Lord Brown described as dishonesty ‘so far removed from almost¹ anything else that I have ever encountered in this area of the law that it appears to constitute a category all of its own’ eventually met its legal nemesis. The planners and lawyers in Welwyn Hatfield will no doubt be gratified that an intuitive sense of what is right was able in the end to prevail.

Dr. Nicholas Dobson is a Senior Consultant with Pannone LLP specialising in local and public law is also Communications Officer for the Association of Council Secretaries and Solicitors.

¹ 'Almost’ because of the 'no less astonishing' house in a haystack case of Fidler v Secretary of State for Communities and Local Government and Reigate and Banstead Borough Council [2010] EWHC 143 (Admin).