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

We apologise for the break in transmission.........

Regular followers of this blog will be all too well aware that only one item has been posted this month, and we are nearly at the end of April already. There is certainly no shortage of material which could have been (and I hope will soon be) the subject of blog entries, but time has been against me.

The explanation is simply that I have been far too busy with fee-paying work in the past month to be able to spare the time to write blog entries, and I then took a much-needed 10-day holiday, before plunging back into the maelstrom of planning problems which urgently require my attention.

The irony is that this blog is suffering from its own success. I explained on the ‘Introduction’ page that this blog was never intended as a marketing tool, but in practice it has brought in a huge amount of work, and continues to do so. It is this factor alone that has slowed the flow of blog articles to a trickle.

Fortunately, I have three very experienced colleagues in our planning law team, which enables us to share out work across the team to even up the workload. I certainly don’t want to have to work quite such long hours as I have done in the past few months. (Easter was effectively cancelled for me this year – it just didn’t happen.) I hope and believe that I have now got my workload under control, and so I am aiming to publish rather more blog entries in the next month than I have in the past few weeks.

So, as the old cliché goes – “Watch this space.”

© MARTIN H GOODALL

Agricultural development after the NPPF

The truth is slowly dawning on a widening circle of farmers, builders and developers and their advisers that with the publication of the National Planning Policy Framework and the withdrawal of PPS7 (along with all the other PPGs and PPSs), the technical advice set out in Annexes A and E of PPS7 has also been ‘lost’. Annex A dealt with agricultural workers’ dwellings, and Annex E explained the practical operation of agricultural permitted development under Part 6 of the Second Schedule to the General Permitted Development Order.

The ‘loss’ of Annex A potentially poses a problem, but in practice I believe this is readily overcome. The only reference to agricultural workers’ dwellings in the NPPF is in paragraph 55, which simply states that local planning authorities should avoid new isolated homes in the countryside unless there are special circumstances such as (inter alia) the essential need for a rural worker to live permanently at or near their place of work in the countryside. No guidance is given in the NPPF as to the use of agricultural occupancy conditions or as to their removal (but see below). However, “the essential need for a rural worker to live permanently at or near their place of work in the countryside” can only be judged on an objective basis, and I strongly suggest that the methodology explained in Annex A to PPS7, whilst it no longer forms part of ministerial policy as such, is nevertheless the appropriate way in which this issue should be approached. It is well-established and well understood, and I would expect LPAs and planning inspectors to continue to apply this approach, even though PPS7 can no longer be called in aid as the authority for doing so.

It should also be remembered that Circular 11/95 (on the use of planning conditions) remains in force, and so paragraphs 102 to 105 of that circular continue to apply, dealing with agricultural occupancy conditions and their removal. In relation to the removal of an agricultural occupancy condition, paragraph 105 refers to the requirement to show that the existing need for dwellings for agricultural workers in the locality no longer warrants reserving a house for that purpose. This paragraph does not prescribe any particular method for assessing continuing need, but long-established practice, which is clearly supported by several relevant judicial authorities, will undoubtedly continue to apply.

As regards Annex E to PPS7, this simply re-stated the basic rules applying to agricultural Permitted Development which would apply in any event, even if they had never been referred to in PPS7. The withdrawal of PPS7 does not affect those principles in any way, and they continue to apply as they always did. My own inclination would be to continue to quote from the text of Annex E to PPS7 in order to explain these principles, but without necessarily citing this as the source.

Thus I do not believe there need be any change in practice relating to the provision of agricultural workers’ dwellings, and the methodology for assessing the functional need for such a dwelling, nor need there be any change of approach in relation into the imposition and removal of agricultural occupancy conditions. Similarly, the principles and practice relating to agricultural Permitted Development under Part 6 of the Second Schedule to the General Permitted Development Order will not change as a result of the withdrawal of PPS7. Nevertheless, De-CLoG could avoid any doubt and confusion which the withdrawal of PPS7 may have caused by re-publishing Annexes A and E of PPS7 in the form of a Circular. Failure to do so could lead to legal disputes which might otherwise be avoided.

© MARTIN H GOODALL

NPPF – Initial impressions

Pressure of work has prevented my getting my head round the final version of the NPPF yet, but my colleague David Brock has put together some initial comments, and you can read these in his own blog. (See the link on the left-hand side bar of this page.)

As expected, all the existing Planning Policy Guidance Notes and Planning Policy Statements have been swept away, leaving nothing in their place other than the very abbreviated text of the NPPF itself, plus another 27 pages of technical guidance on Flood Risk and Minerals Policy. There’s no sign yet of the suite of supporting documents which it was hinted would accompany the NPPF. Maybe they are waiting until the dust has settled before issuing further guidance. There is a help line for local planning authorities (but not for the rest of us?) which may alert De-CLoG to the need for additional guidance to fill some of the gaps left by the withdrawal of previous ministerial advice on policy and procedures.

Only one circular has been withdrawn so far - 05/2005, dealing with planning obligations, which had been rendered somewhat out-of-date by recent legislative changes, including the introduction of the Community Infrastructure Levy. Other important circulars, including 11/95, 10/97, etc. are still in full force. So if Uncle Eric’s curse on wordy policy guidance applies only to the old PPGs and PPSs, then maybe some newly published circulars could fill the gap left by the removal of important technical detail which some of the withdrawn policy documents contained.

My focus in the immediate future, when I can tear myself away from my ever-increasing workload to read the NPPF properly, will be to try to understand the real policy implications of the document, compared with the policy regime which applied before its publication. The strange and totally inexplicable euphoria expressed by the Daily Torygraph, the National Trust and others is certainly not a reliable guide to the actual effect which the NPPF may have in policy terms. Their apparent joy at the publication of the final version of the document appears to me to be just as bizarre as their excoriation of the original draft. One is driven to the conclusion that they simply don’t understand the planning system!

© MARTIN H GOODALL

NPPF published

Greg Clark got up in the House of Commons just after 12.30 to announce the publication of the NPPF in its final form, but I have not yet managed to get my hands on the published text.

No doubt this will become available on the internet later today. Unlike 'the usual suspects' (National Trust, CPRE and sundry newspapers) I do not propose to rush into premature comment.

What planning lawyers like me will be looking for is a clear indication as to how much of previous guidance on policy and procedure will be preserved in one form or another. We shall be looking in particular at how many existing circulars (if any) have been cancelled, and whether the detailed contents of certain PPGs/PPSs have been re-published in some other form outside the scope of the NPPF itself.

The views I have heard expressed by my own colleagues and other planning professionals vary from the expectation at one end of the scale that quite a lot of the existing guidance will in fact be preserved and will continue to apply, to the possibility at the other end of the scale that we really will be faced with a completely clean sheet, with all the resulting uncertainty that this will create.

UPDATE: It is now on the CLG website, at : http://www.communities.gov.uk/documents/planningandbuilding/pdf/2115939.pdf

© MARTIN H GOODALL

George Osborne’s damp squib

As my colleague, David Brock, blogged the other day (see the link on the side bar), publication of the final version of the National Planning Policy Framework seems to have been delayed slightly.

Publication was originally scheduled “before the end of March”, and the government still seems on target to meet that deadline, but there is strong evidence that efforts were being made to publish the NPPF in time to coincide with today’s Budget Statement.

At the weekend George Osborne was hoping to announce that the NPPF would be published “on Budget Day”, but it seems that this got changed at the last moment, so that what he actually said in a TV interview on Sunday was that it would be published “in Budget Week” (in fact I thought I heard him say, rather awkwardly, “ON Budget Week”).

In today’s Budget Statement this had changed to “next week”. Rumours are going around Whitehall that the Treasury was pressing very hard to get publication of the NPPF scheduled to coincide with the Budget, no doubt to allow George Osborne once again to make a splash by announcing significant planning ‘reforms’. He seems for some obscure reason to be intent whenever possible on stealing Uncle Eric’s thunder.

The reason for the last minute hitch seems to be, as David Brock suggested in his recent blog post, that there is some last-minute horse-trading going on between the Treasury and De-CLoG (and possibly also DEFRA) over the extent to which the dash for growth is to be the overriding aim of the document and how far this is to be tempered with ‘ifs’ and ‘buts’ as a sop to the environmental lobby.

For the government, it’s probably a case of “Heads – they win; Tails – we lose” in the sense that if the NPPF is seen to be a developers’ charter, there will be renewed screaming and shouting from the usual suspects (CPRE, National Trust, the Daily Torygraph, etc.) whereas if the document is seen to have been significantly watered down compared with the controversial consultation draft, we can expect to hear whingeing from the HBF, British Chambers of Commerce and other pro-development groups (“a lost opportunity to promote economic growth” etc. etc. – choose your own rent-a-quote).

What really interests me as a planning lawyer is how far Uncle Eric’s mad scheme to cut ministerial policy advice down to only a little over 50 pages will have been adhered to, or whether common sense has prevailed within De-CLoG, so that a significant body of advice on practice and procedure will have been preserved in a suite of supporting documents. Whilst PPGs and PPSs are set to disappear, there is no need to withdraw any of the existing circulars. As I have suggested before, some of the contents of existing PPGs and PPSs really do need to be re-published in some other form, and this is what I shall be looking out for when the NPPF comes out.

© MARTIN H GOODALL