Tuesday, 20 April 2010

Concealed development again

I commented over a year ago on the case of Fidler (which is expected to go to the Court of Appeal), but a lesser known case on this topic - Welwyn Hatfield Council v SSCLG – came before the High Court in April 2009, when a Lawful Development Certificate granted by an Inspector on appeal was quashed by Collins J, on the ground that the appellant had deliberately concealed the development and could not therefore rely on the 4-year rule to establish the lawfulness of the development.

This decision was overturned by the Court of Appeal on 29th January 2010 ([2010] EWCA Civ 26). Collins J had referred to a previous Court of Appeal judgment in FSS v Arun DC [2006] EWCA Civ 1172, but without apparently appreciating that it established in clear terms that concealment of a development does not prevent the 4-year rule from running.

Richards LJ drew attention to the judgment of Sedley LJ in Arun. In agreeing that any enforcement action had to be taken within the four year time limit in section 171B(2), Sedley LJ had said this (at para 36):

"I can entirely understand the local planning authority's sense of frustration about this. Their planning department is not a police station, and the discovery that a person such as Mrs Brown has – not to put too fine a point on it – cheated on a conditional grant of permission, to the detriment of her neighbours and of planning control, may well be a matter of time and of chance. The ordinary ten-year period might well have been thought reasonable for such cases, but – in circumstances which Carnwath LJ's judgment illuminates – it is not what Parliament decided to provide."

Richards LJ said that it seemed to him that a similarly restrained approach was called for in the present case. The court should not be tempted to adopt a strained construction of the section in reaction to the deliberate deceit practised by the landowner or out of concern for the difficulties that such conduct creates for local planning authorities in enforcing planning control. The outcome should be the same as if, for example, there had been a genuine change of mind in the course of construction of a building for which planning permission had been obtained in good faith. The question is whether the situation, viewed objectively, is one for which the statute has provided a four-year time limit or a ten-year time limit. If it is considered that there should be a different outcome in a case of dishonesty or deliberate concealment, it is for Parliament to amend the legislation.

In conclusion, Richards LJ took the view that in this case there was a breach of planning control consisting in the change of use of the building to use as a single dwelling house, within section 171B(2). On that basis a 4-year time limit applied and the owner was entitled to the certificate of lawfulness of existing use for which he had applied.

He added this final comment:

If my analysis is correct, the lesson for local planning authorities is clear. When checking whether a building has been built in accordance with planning permission and is being used in accordance with the permitted use, they need to look carefully at the inside of the building and not just at the exterior. External appearances can be highly misleading, as this case shows, and authorities need to be alert to the possibility of deception. The legislation in its existing form is open to abuse. Whether it should be amended so as to prevent dishonest advantage being taken of the shorter time limit under section 171B(1) and (2) is, as I have said, a matter for Parliament.”

The case of Fidler, of course, turns on an entirely different point, namely whether removal of the straw bales that concealed the development was part and parcel of the development, so that the development could not be said to have been substantially completed (as per Sage) until the straw bales had been removed. It was this which the Inspector, and the Court at first instance, felt prevented the 4-year rule from operating in Mr Fidler's favour.


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