Comment - Appellants tested on intention to deceive

Some trangressors of planning control are simply unaware they need permission; others set out deliberately to conceal an unauthorised use or development until the time allowed for enforcement action has safely passed.

As Lord Brown remarked in the leading judgement on situations where appellants rely on the immunity from enforcement provisions of section 171B of the Town and Country Planning Act 1990, a "spectrum of wrongdoing" is involved.

The Supreme Court ruling in Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government and Another [2011] was tested in a recent case in Dorset (see New dwellings authorised as lawful despite plan deviation). In 2004, the council approved conversion and extension of a redundant milking parlour to form two holiday let cottages. From completion in 2006, one cottage was permanently occupied by the appellant's daughter. Another daughter moved into the second cottage in 2010.

The inspector accepted that the completed building varied significantly from the approved plans, but held that enforcement action could no longer be taken because it had been substantially completed more than four years ago. However, the council claimed that the departures from the approved plans, misdescription of one daughter's address on the electoral register, payment of business rates rather than council tax and the submission of information intended to show the original conditions had been met pointed to a clear intention to deceive.

The inspector was satisfied that the appellant had initially sought to make beneficial use of the redundant building, rather than aiming to secure permanent homes in a location where getting permission was unlikely. The fact that a building control officer had signed off design changes, albeit without reference to the planning department, also suggested that no attempt to conceal the development's true nature was intended during construction.

He recognised that the appellant was aware that permanent residential use breached one of the original conditions and that it could become lawful over time. However, he saw this as a typical example of an appellant "laying low" to avoid discovery - "a common enough circumstance but not what I would call positive deception". On this basis, he ruled that the appellant was not disbarred from benefiting from the rights of immunity conferred by section 171B.

Compare this with the latest round in a South Yorkshire council's battle to end permanent residential occupation of a barn in the green belt (see Residential barn use refused due to deceptive practice), in which an inspector agreed that the four-year time limit did not apply because of the "considerable lengths" to which the appellant had gone in concealing use. In the aftermath of the Welwyn case, development management teams' forensic skills will continue to be tested in such matters.


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