Concealed development and the Connor principle

An anonymous correspondent has made an interesting point in response to my post on “Concealed Development” [10 May 2012]. This concerns the wording of section 171BC of the 1990 Act (recently introduced by section 124 of the Localism Act 2011). I thought it deserved a post to itself, rather than being shunted into the Comments section.

Anonymous writes: “I am not sure that I agree that the concept of concealment, as set out at section 124 of the Localism Act 2011, is similar in terms of the evidential burden that is required under the public law Connor principle. Whilst the newly inserted sec 171BC refers to "deliberate" concealment, it also qualifies that by stating that this can be "to any extent".

“The scenario most often played out in my experience is that a building is used as an independent residential dwelling for 4-5 years and then having established that period for immunity purposes, a CLEUD application is made. The failure to seek Building Regulations approval for the conversion works, the failure to notify the local authority’s Council Tax department, or to register the address and its occupants on the Electoral Roll all have, in the context of a CLEUD application, the strong appearance of being deliberate acts of concealment rather than just omissions. In that scenario I do not see that there is any meaningful distinction between an act or an omission; the magistrates would be invited to conclude that the intention of the occupier/applicant was clear. Furthermore, the Council would contend that these detailed omissions with regard to its other departments deprived it of its only realistic chance to discover the breach.

Anonymous concludes: “I personally don’t think it is necessary to have deliberately lied to officers or physically to have concealed a structure or a use, and the types of omission mentioned above could be enough alone. It seems you disagree and, as your blogs are always highly informative and excellently reasoned, I would love to hear your response.”

Anonymous is correct in drawing attention to the wording of section 171BC(1), which provides that the court may make an order if it is satisfied, on the balance of probabilities, that the apparent breach, or any of the matters constituting the apparent breach, has (to any extent) been deliberately concealed by any person or persons. However, the mere fact that someone has not sought Building Regulations approval, is not paying Council Tax and/or has not registered on the Electoral Roll does not in itself amount to evidence of deliberate concealment. The court would still have to be satisfied that the developer deliberately intended by means of these acts or omissions to conceal the development. That intent cannot be inferred simply from the fact that they occurred. Mere suspicion would not be enough. There must be sufficient evidence on the balance of probability that there was deliberate intent to conceal the development by these specific means.

My own professional experience suggests that omissions of the type mentioned can just as easily be the result of ignorance, or general lack of organisation, rather than being part of some deliberate campaign of concealment. Many laymen are entirely unaware that conversion works of the type involved in these cases require Building Regulations approval. People refrain from registering on the electoral roll for all sorts of reasons, and so no inference can necessarily be drawn from that fact. As for failure to register for Council Tax or to get a TV licence, that is just as likely to be the result of general disorganisation as any more deliberate intent. Without some definite evidence that the motivation was concealment of unauthorised development, I do not believe a magistrates court would be entitled to draw any inference from the mere fact that such omissions had occurred. Something more would be required.

I am prepared to accept that the use of the words “to any extent” may catch acts or omissions which the Supreme Court in Welwyn Hatfield (and the Court of Appeal in Fidler) were prepared to accept do not engage the Connor principle, but the element of deliberate intent is still an essential ingredient. In my view, this brings the relevant behaviour into very much the same category of behaviour as would engage the Connor principle, and so a local planning authority might still find it more convenient to rely on the Connor principle, rather than having to jump through hoops to get an order from the magistrates' court before then proceeding to serve an enforcement notice.

I am prepared to make two predictions. First, there will be some significant legal battles over the interpretation and application of the provisions of sections 171BA to 171BC and, secondly, a local planning authority will sooner or later decide to take the risk of bypassing these statutory provisions (possibly because they had known about the breach for too long, or were unable for some other reason to invoke these provisions) and simply serve an enforcement notice ‘out of time’, placing their reliance on the Connor principle.

© MARTIN H GOODALL