Masthead Local Govt - Planning

Concealment: the latest cases

Housing construction iStock 000002924160XSmall 146x219Steven Bell considers some of the issues raised by recent concealment cases, including one where a couple disguised a house as a garage.

Two recent cases have addressed the issue of concealment in planning from two differing angles.

A recent case before the Magistrates Court in Nuneaton confirmed that Stratford-on-Avon District Council could take enforcement action against a couple who disguised their house as a garage on the basis that the use had been deliberately concealed. It appears that in December 2016 a certificate of lawful use and development for a garage argued that in June 2011 the garage had been converted into a ‘habitable residential dwelling’ that they had permanently occupied since early 2012. The council were not aware of the change of use and was out of time for taking enforcement action in the usual way.
 
Interestingly an appeal decision issued by the Planning Inspectorate for a site address in Abergavenny, dated 13 September 2017, (following an enforcement notice issued by Monmouthshire County Council) found that there had been deliberate concealment in the conversion of a barn to a home. In the decision the Planning Inspector stated: "….However, this case turns on whether the breach has been deliberately concealed such that the provisions of s.171B(2) are not engaged, in the context of the principles established by Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] UKSC 15 and subsequent legal judgements…"

Both cases illustrate that although you can apply to the Magistrates Court for an enforcement order as set out in the Town and Country Planning Act 1990 s.171BA, s.171BB and s.171BC (as was the case with Stratford-on-Avon District Council) this is purely a supplemental procedure and does not replace the principles set out in Welwyn Hatfield Council v SoS [2011] UKSC 15 (“Welwyn case”) as followed in Jackson v SoS [2015] EWHC 20 (Admin) (“Jackson case”).  

I make this point as it can be confusing for local planning authorities as to which way to deal with concealment matters. However as both courses (either Magistrates Court or arguing the point before the Planning Inspector) are available and there is no obligation to apply for an enforcement order as set out in the Town and Country Planning Act 1990 as amended first.  

From experience I consider that it can be difficult to argue planning issues before the Magistrates Court. There is also a higher risk of costs in the Magistrates Court than before a Planning Inspector.

However, if you are arguing the matter before a Planning Inspector you will need to be mindful of the four features identified by Lord Mance in the Welwyn case that takes a case outside the scope of s.171B(2) of the Act.  Although the Jackson case stated that not all cases would need to meet all four points for the Welwyn principle to apply it is well worth looking at each criteria in respect of a potential case (as each case is determined on its facts). The criteria are that there was positive deception in matters integral to the planning process; the deception was directly intended to undermine the planning process; the deception did undermine the planning process; and the wrong doer profited directly from the deception.
 
It will be interesting to see how the law on deception/concealment in planning develops as it is clear whatever way you approach deception cases there will be no immunity if there is deliberate concealment.

Steven Bell is a Senior Lawyer in the Planning and Environment Team at nplaw and was part of the team which won the LLG Award in Planning, Highways and Environment in 2014. He is a finalist in the 2017 LLG Awards for Place Lawyer of the Year. Steven can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..

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