Concealed Development – transitional provisions

I did not wish to lengthen an already rather long post yesterday by including details of the transitional provisions applying to the introduction of the new provisions set out in sections 171BA to 171BC of the 1990 Act. However, I appreciate that there may well be some concern as to how the new provisions may affect allegedly concealed development which had already acquired immunity under the 4-year rule or the 10-year rule (whichever is applicable). Could these developments be caught by the new provisions? The short answer is ‘No’. [If you want the chapter and verse, it can be found in Article 13(3) of the Localism Act 2011 (Commencement No.4 and Transitional, Transitory and Saving Provisions) Order 2012.]

If immunity from enforcement was acquired under either the 4-year rule or the 10-year rule before 6 April 2012, then the provisions of sections 171BA to 171BC will not apply to that development. This means that if an unauthorised building was substantially completed no later than 5 April 2008 or if a change of use of an existing building to use as a single private dwelling took place no later than that date, and its use as a dwelling has been continuous since that change of use, then a local planning authority will not be able to seek an order from the magistrates court enabling them to serve an enforcement notice outside the 4-year period. Similarly, if there was some other material change of use of a building or land which took place no later than 5 April 2002, and the use has been continuous since the change of use was made, the new statutory provisions regarding deliberately concealed development cannot be invoked. The same applies to any breach of condition which occurred before 6 April 2002 which has continued without a break since then.

It should be borne in mind that even though a local planning authority would not be able to invoke the new statutory provisions in these circumstances, the Connor principle might nevertheless apply, and the LPA could still serve an enforcement notice outside the 4-year or 10-year period on that basis, without resort to the magistrates court, but they would then have to show in any subsequent section 174 appeal that the developer’s conduct was so obviously fraudulent or deceitful as to engage the Connor principle. The conduct in question would have to be broadly similar to the conduct of the appellants in Welwyn Hatfield and in Fidler.

© MARTIN H GOODALL

Concealed development

While we were all focused on the passage of the Localism Bill through parliament in the closing months of last year, the Court of Appeal heard an application by the Secretary of State, in light of the decision of the Supreme Court in Welwyn Hatfield Council v. SSCLG [2010] EWCA Civ 26, to set aside the permission to appeal which had previously been given by the Court in the case of R. (Fidler) v. SSCLG - [2011] EWCA Civ 1159.

The Court of Appeal granted the Secretary of State’s application on 1 September 2011, and at least one commentator has suggested that this decision goes beyond the scope of the Welwyn Hatfield judgment. I beg to differ. It appears to me that the judgment in Fidler is merely another example of the application of the Connor principle.

In setting aside Mr Fidler’s leave to appeal, Sullivan LJ drew attention to the judgment of Lord Mance in Welwyn Hatfield, who observed that Mr Beesley's conduct, although not identifiably criminal, consisted of positive deception in matters integral to the planning process (applying for and obtaining planning permission) and was directly intended to and did undermine the regular operation of that process. Mr Beesley would be profiting directly from his deception if the passing of the normal four-year period for enforcement which he brought about by the deception were to entitle him to resist enforcement. The apparently unqualified statutory language could not in Lord Mance’s opinion contemplate or extend to such a case. He did not therefore consider that sections 171B(2) and 191(1)(a) were applicable to the facts of that case. Had he thought otherwise, he would have concluded that their language could not have been intended to cover the exceptional facts of that case, where there was positive deception in the making and obtaining of fraudulent planning applications, which was directly designed to avoid enforcement action within any relevant four year period and succeeded in doing so.

Sullivan LJ also referred to the judgement of Lord Rodger in Welwyn Hatfield, who had said that in that situation, where Mr Beesley deliberately set out to conceal the true nature of the development during the whole four year period, with the aim that the council would be prevented (as happened) from taking enforcement action within the four-year period, there is no justification for cutting off the council's right to take enforcement action. To hold otherwise would be to frustrate the policy, indeed the raison d'etre, of section 171B(2) of the 1990 Act; in short, it is unthinkable that Parliament would have intended the time limit for taking enforcement to apply in such circumstances.

In the case of Fidler, the deception was not the making of a false planning application, but the deliberate hiding of building operations behind a shield of straw bales the top of which was covered by a tarpaulin. On the appellant's own evidence, the bales were deliberately erected to conceal the construction of the dwelling; this was not a case of someone merely refraining from drawing attention to themselves by, for example, not applying for building regulations approval [emphasis supplied]; here, there was positive conduct, and the avowed intention of that positive conduct was to deceive the local planning authority so that it would not realise building operations had been carried out until after the four-year period had expired.

It was on this basis that the Court of Appeal decided that Mr Fidler’s conduct was a case of deception which disentitled an appellant from relying upon the four-year rule; it simply did not lie in this appellant's mouth to say that this local planning authority should have spotted the building which he had so carefully concealed at some earlier stage. Were he to do so it would indeed frustrate the underlying statutory purpose. In this case, it was therefore of no consequence whatsoever whether the bales were or were not part of the building operations; the short point was that this was a deliberate deception which plainly falls within the principles set out in the Welwyn Hatfield case [emphasis supplied], the consequence of which was that this appeal had no prospect whatsoever of succeeding. It was for those reasons that the Court set aside the permission to appeal that had been granted by Jacob LJ before the position was clarified by the Supreme Court in Welwyn Hatfield.

I have recently won an appeal under section 195 in which these issues were argued before the inspector. The inspector accepted my submission that the decision of the Court of Appeal in Fidler does not take the matter any further than Welwyn Hatfield. Unlike the construction of Mr Fidler’s ‘castle’ in Surrey behind a very large pile of straw bales, the change of use to a dwelling by my own client was not “undertaken in a clandestine fashion” and the appellant was not “deliberately deceiving the local planning authority as to the existence of the dwelling house” (or as to its use). There were no “positive and deliberately misleading false statements by the owner successfully preventing discovery”. In Mr Fidler’s case, the LPA’s officers had paid several visits to the property and were seeking to establish what was going on. Mr Fidler sought deliberately to mislead them. Nothing of that sort occurred in my client’s case, and so the lawful development certificate he was seeking was granted by the inspector.

I fear that, as a result of Welwyn Hatfield and Fidler, we are going to be faced repeatedly with arguments over concealment in section 174 and section 195 appeals. However, it is clear that the Connor principle will only apply where the appellant’s conduct is of the same order as it was in those two cases. It is clear, both from the judgments in Welwyn Hatfield and from Sullivan LJ’s remarks in Fidler, that simply ‘keeping a low profile’ (including, for example, refraining from giving notice of works under the building regulations, not registering for council tax or on the electoral roll, or not buying a television licence) would not by themselves, at least without more, disentitle reliance upon section 171B(1) or (2) or section 191(1)(a) or (b). As Lord Mance observed, these are aspects of conduct not uncommon among those who build or extend houses or convert buildings into houses without planning permission; they do not bear directly on the planning process, and it was on that basis that Lord Mance was prepared to accept that they do not engage the Connor principle.

Meanwhile, section 124 of the Localism Act 2011 has now come into force. We should therefore refer from now on to sections 171BA, 171BB and 171BC of the 1990 Act. How will this affect the position in future?

Lord Brown in giving judgment in Welwyn Hatfield observed that only truly egregious cases such as those of Mr Beesley and Mr Fidler should be regarded as subject to the Connor principle. He simply did not accept that amending legislation was required before this salutary principle of public policy could ever be invoked. He did recognise, however, that it should only be invoked in highly exceptional circumstances.

In practice, it seems to me that in view of the existence of the Connor principle, which has clearly been confirmed by the decisions in Welwyn Hatfield and in Fidler, the new legislation on concealed development was entirely unnecessary, and very few LPAs are likely to want to go through the tiresome procedures involved in seeking an order from the magistrates court in order to be able serve an enforcement notice outside the 4-year or 10-year period (whichever is applicable). There are likely to be very few cases indeed in which development has been deliberately concealed, thereby enabling the powers under section 171BA to 171BC to be invoked, which do not also invoke the Connor principle. Thus, in the majority of cases where it can be shown that development has been deliberately concealed, LPAs could simply serve an enforcement notice ‘out of time’, and rely on the Connor principle in the subsequent appeal. If it turns out that the appellant’s conduct fell short of the level of deceit or concealment which would bring the Connor principle into play, resulting in the enforcement notice being quashed on appeal, then it is unlikely that the LPA would have been any more successful in obtaining an order from the magistrates court on the same facts.

The one consideration which might influence an LPA in its choice of procedure is any perceived difference in the chances of persuading a magistrates court that there has been deliberate concealment compared with the chances of persuading an inspector on the basis of the same facts that this disentitles the appellant from relying on the 4-year rule or 10-year rule. It is possible that the magistrates court might seem to be a better bet, but the risk is that the case would then go straight off to the High Court if an order is granted by the magistrates, so it might be a safer and cheaper option to bypass the procedures under sections 171BA to 171BC and simply serve an enforcement notice out-of-time, in reliance on the Connor principle, and argue the point in front of the inspector in a section 174 appeal.

It will be interesting to see what use, if any, is made of the new legislation, when the Connor principle would seem to offer a simpler and quicker alternative.

© MARTIN H GOODALL