Planning enforcement orders and deliberate concealment
A recent ruling shows that when it comes to Planning Enforcement Orders, sins of omission are just as bad as sins of commission, writes Roderick Morton.
In McCaffrey v Dartmoor NPA [2023] 2 WLUK 341 a builder obtained planning permission to construct an open-sided barn in 2007, with use restricted to agricultural purposes. In 2012, after a complaint that the barn was being used residentially, the builder persuaded the NPA’s enforcement officer that it was just a barn. After another complaint in 2021, the builder admitted that it was a dwelling. But he said that he had been living there for 4 years and that the use was immune from enforcement action.
After an investigation, the NPA decided to enforce. It sought a Planning Enforcement Order (“PEO”) from the Magistrates’ Court, which was granted based, it seems, largely on the developer’s failure to register for council tax and his collusion with his mother to make misleading entries on the electoral roll (saying that he had lived with her, rather than at the barn). The developer appealed by way of case stated to the High Court.
Readers will know that sections 171BA and 171BC TCPA 1990 allows the LPA to seek an order allowing the taking of enforcement action outside the normal time limits in s171B. The Magistrates’ Court may make the order where it is satisfied, on the balance of probabilities, that the apparent breach “has (to any extent) been deliberately concealed by any person or persons and the court considers it just to make the order having regard to all the circumstances”.
The first ground of appeal was whether acts of omission were relevant to the question of whether there had been deliberate concealment. Mr Justice Swift concluded that there was no distinction made in the legislation between omissions and positive acts of concealment. An omission, and particularly a series of omissions, could be sufficient to amount to deliberate concealment and the question was one for the deciding magistrates’.
The fourth ground of appeal is also interesting. The court held that the mother’s actions could also be taken into account because the legislation looked at actions by “person or persons”. That was particularly the case where there was collusion between the developer and the other person. But it could also have applied had the mother acted alone though it might then have been less straightforward to conclude that it was “just” to make the PEO against the developer.
It is also interesting (though not a ground of appeal) that the omissions were in areas not directly related to planning (electoral roll, council tax, refuse collection – the builder put his refuse with his mother’s bins).
It is worth comparing this approach to the alternative deliberate concealment regime which arises from the Supreme Court decision in SSCLG and Beesley v Welwyn Hatfield BC [2011] UKSC 15. In that case, the court held that positive deception by the developer in matters integral to the planning process (ie obtaining permission) which was intended to undermine the operation of the planning process and did so undermine it (ie it avoided enforcement action) and resulted in benefit to the developer was sufficient to cause the relevant immunity period to be suspended or to start only when the deception was first discovered. Each of the 5 topics in bold has to be demonstrated in order to run a ground (d) case based on deliberate concealment and the bar is high.
The PEO approach was always intended to be easier than the Beesley approach. The McCaffrey judgment seems to put clear water between the two approaches in terms of the ease with which the PEO can be obtained. There is no need for positive deception, omission will do. The deception can be by persons other than the developer, the mother in this case . The deception need not be in matters integral to the planning process, council tax etc will do. It is not clear what evidence, if any, was before the district judge on benefit to the developer. There is still a need to convince the Magistrates’ Court that it is “just” to impose the order, rather than simply convincing an inspector on appeal, but the bar for PEOs seems much lower than under the Beesley approach.
A final point on the case relates to the second ground of appeal. It appears that the NPA might not have given adequate consideration to the developer’s human rights in deciding to seek the PEO. The NPA got away with it. That, said Mr Justice Swift, was a question for judicial review, not the Magistrates’ Court. The moral must be though that, like any enforcement action, an application for a PEO is best made on the basis of a written report which considers the breach, the need for action, human rights and the public sector equality duty explicitly. That way, spurious human rights challenges can be minimised or avoided altogether.
Roderick Morton is a partner at Ivy Legal. This article first appeared in Ivy Legal's monthly column for the Royal Town Planning Institute's Network for Planning Enforcement (NAPE) newsletter.
