David Bonsall v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Sales,Mr Justice Baker |
| Judgment Date | 08 December 2015 |
| Neutral Citation | [2015] EWCA Civ 1246 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 December 2015 |
| Docket Number | Case Nos: C1/2014/1402 and C1/2015/0336 |
[2015] EWCA Civ 1246
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Mr Justice Stuart-Smith ([2014] EWHC 2022 (Admin))
Mr Justice Holgate ([2015] EWHC 20 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Richards
Lord Justice Sales
and
Mr Justice Baker
Case Nos: C1/2014/1402 and C1/2015/0336
and
Paul Brown QC and Alexander Booth (instructed by Keystone Law) for the Appellants
Rupert Warren QC (instructed by The Government Legal Department) for the Secretary of State
The Councils were not represented and did not appear on the appeals
Hearing date: 4 November 2015
In Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] UKSC 15, [2011] 2 AC 304 (" Welwyn"), the Supreme Court held that the time limits laid down in section 171B of the Town and Country Planning Act ("the 1990 Act") for enforcement action in respect of breaches of planning control did not apply in a case of positive deception designed to avoid enforcement action within those time limits. Shortly thereafter, by section 124 of the Localism Act 2011 ("the 2011 Act"), Parliament inserted new sections 171BA to 171BC into the 1990 Act whereby in a case of deliberate concealment a local planning authority could apply to the magistrates' court for a planning enforcement order ("PEO") permitting enforcement action outside the time limits in section 171B. The issue in these appeals is whether the enactment of those new provisions removed the effect of the decision in Welwyn in relation to cases of deliberate concealment, so that local planning authorities seeking to enforce outside the section 171B time limits in such a case must follow the PEO procedure and cannot rely on the Welwyn approach.
In each of the two cases before us, it was held by an inspector on an enforcement notice appeal that there had been positive deception by reason of which, on the basis of the decision in Welwyn, the normal time limit for enforcement did not apply; that decision was upheld by the High Court on an appeal under section 289 of the 1990 Act; and permission was subsequently granted for a further appeal to this court.
The statutory scheme at the time of the decision in Welwyn
This part of my judgment describes the statutory scheme considered by the Supreme Court in Welwyn. For that reason I refer to the statutory provisions in the past tense. As explained below, however, all the relevant provisions remain in force today: they have been supplemented by additional provisions but their wording has not been altered. Whether their meaning or effect has been altered by the additional provisions is of course the issue in the appeals.
The time limits for enforcement action were to be found in section 171B of the 1990 Act. That section read, so far as material:
" 171B. Time Limits
(1) Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed.
(2) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach.
(3) In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach."
Section 171A(1) defined "breach of planning control" as "(a) carrying out development without the required planning permission; or (b) failing to comply with any condition or limitation subject to which planning permission has been granted". By section 171A(2), the taking of enforcement action included the issue of an enforcement notice (as defined in section 172).
The time limits in section 171B fed into the enforcement process in two ways. First, by section 174(2)(d), one of the grounds on which an appeal might be brought against an enforcement notice was that "at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by [the matters stated in the notice]". Secondly, the expiry of the time for enforcement action was one basis upon which an application could be made under section 191 for a certificate of lawfulness of existing use or development. Section 191 provided, in material part:
" 191. Certificate of lawfulness of existing use or development
(1) If any person wishes to ascertain whether —
(a) any existing use of buildings or other land is lawful;
(b) any operations which have been carried out in, on, over or under land are lawful; or
(c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful,
he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.
(2) For the purposes of this Act uses and operations are lawful at any time if —
(a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and
(b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force.
(3) For the purposes of this Act any matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful at any time if —
(a) the time for taking enforcement action in respect of the failure has then expired; and
(b) it does not constitute a contravention of any of the requirements of any enforcement notice or breach of condition notice then in force.
(4) If, on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application.
…
(6) The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed."
The decision in Welwyn
In Welwyn, a Mr Beesley had been granted planning permissions to construct an agricultural barn, subject to a condition that it be used only for the storage of hay, straw or other agricultural products. He constructed a building which to all external appearances was the permitted barn but internally was a dwelling house with full facilities. He and his wife moved in and lived there continuously for four years. He then submitted an application under section 191(1)(a) for a certificate of lawfulness of use of the building as a dwelling house. The council refused the certificate applied for but an inspector granted it on appeal, holding that the building had been in use as a dwelling house for more than four years and that the situation fell within section 171B(2), so that no enforcement action could be taken. The inspector's decision was quashed by the High Court but restored by the Court of Appeal. The Supreme Court reversed the decision of the Court of Appeal on two grounds. The first, relating to whether there was a change of use within section 171B(2), is not material to the present case. The second and material issue was whether Mr Beesley's deceit should preclude him from obtaining a certificate even if section 171B(2) was otherwise applicable. This was a new point: the argument had proceeded in the Court of Appeal, in accordance with the general understanding at the time, on the basis that the time limits in section 171B had to be applied in accordance with the literal language of the statute.
The factual basis on which the court proceeded in relation to the second issue was that Mr Beesley had intended to deceive the council from the outset. The aim of his conduct was said to be, firstly, to obtain a planning permission which would not have been granted had the application been for a dwelling house; secondly, to conceal the fact that what was being built was and was to be a dwelling house; and thirdly, to live in the house without being detected or therefore having enforcement steps taken for the four-year period stated in section 171B(1) and (2), after which a certificate would be sought under section 191. But Lord Mance said that "[t]he real gravamen of the council's case is to be found in the deception involved in the obtaining of false planning permissions which Mr Beesley never intended to implement, but which were designed to and did mislead the council into thinking that the building was a genuine hay barn and so into taking no enforcement step for over four years" (paragraph 43). This was described as "deception in the planning process and directly intended to undermine its...
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