Nigel Keith Jackson v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Holgate,Mr Justice Holgate |
| Judgment Date | 13 January 2015 |
| Neutral Citation | [2015] EWHC 20 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 January 2015 |
| Docket Number | CO/2434/2014,Case No: CO/2434/2014 |
[2015] EWHC 20 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Justice Holgate
Case No: CO/2434/2014
Paul Brown QC and Alexander Booth (instructed by KEYSTONE LAW) for the CLAIMANT
Nathalie Lieven QC (instructed by TREASURY SOLICITORS) for the DEFENDANT
Hearing dates: 27 TH AND 28 TH NOVEMBER 2014
Introduction
The enforcement of breaches of planning control under the Town and County Planning Act 1990 is subject to time limits in section 171B, upon the expiration of which development is treated as lawful and no enforcement action may be taken. For example, the time limit in relation to buildings operations or the change of use of a building to a single dwelling house without planning permission is 4 years. The protection afforded by these limitation periods has been open to abuse by unscrupulous individuals, well aware of the rules, who deliberately conceal a breach of control until 4 years have passed and then "triumphantly reveal" (per Lord Rodger at [2011] 2 AC 331C) their development when making an application to the local authority under section 191 of the Act for a certificate of lawfulness of existing use or development ("CLEUD").
However, in Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] 2 AC 304 the Supreme Court held that the limitation periods in section 171B should be construed so as not to apply to someone who positively deceives the local planning authority in order to avoid enforcement action being taken. Shortly after Welwyn was decided, Parliament enacted section 124(1) of the Localism Act 2011 so as to insert sections 171BA to 171BC into the 1990 Act. These provisions expressly deal with the problem of deliberate concealment by giving the local planning authority a power to apply to the magistrates' court for a planning enforcement order ("PEO").
The main question in this case is whether Parliament enacted sections 171BA to 171BC so as to replace the law laid down by the Supreme Court in relation to deliberate concealment of breaches of planning control. The Appellant contends that the answer is yes, because the PEO code "covers the field". The Secretary of State submits that the answer is no, because the new legislation simply widens the powers available to authorities. The point is plainly of general importance and I note that in Bonsall v Secretary of State (C1/2014/1402) Sullivan LJ granted permission to appeal on 10 November 2014 on this very issue. In that case the point had not been raised at first instance before Stuart-Smith J ( [2014] EWHC 2022 (Admin)).
At the outset I would like to express my gratitude for the helpful submissions from all Counsel.
Background
Mr. Jackson is the owner of a trout farm at Sutton Springs, Bullington Lane, Sutton Scotney, near Winchester. At the northern end of the site there are two buildings, the main dwelling and a building referred to as "the barn" which is the subject of these proceedings.
The barn was erected in 2004 pursuant to a planning permission granted on 25 March 2004. However, it was not built in accordance with the approved plans and so a retrospective planning permission had to be sought for the barn as built, which was granted on 21 July 2005.
According to Mr. Jackson, dormer windows and roof lights were inserted on the roof slopes in late 2007 to early 2008. Thereafter, the Appellant's son Mr. James Jackson, began to use the first floor of the barn as a dwelling on some date between 6 February 2009 and 26 June 2009.
The local planning authority, Winchester City Council ("WCC") received a complaint or query concerning residential use of the barn and an enforcement officer, Mr. Hobson, was sent to the premises to investigate on 15 April 2009. On that date works were being carried out and Mr. Hobson did not enter the barn because he was advised by Mr. Jackson or someone working with him at the time, not to do so.
Because the dormer windows and roof lights had been installed without the necessary planning permission, WCC wrote to the Claimant inviting him to legalise the position by making a planning application. He did so and a site visit was carried out on 31 July 2009 by the case officer, Mrs. Jill Lee. Subsequently permission was granted on 10 August 2009.
On 2 April 2013 Mr. Jackson submitted to WCC an application under section 191 for a CLEUD confirming the lawfulness of the use of the first floor of the barn as a dwelling on the basis that it had been used as such for a continuous period of 4 years. On 29 May 2013 WCC refused that application because it was not satisfied that the first floor of the barn had been converted to a dwelling at least 4 years before the date of Mr. Jackson's application.
On 13 June 2013 the Claimant made a second application to WCC for a CLEUD. That was refused by WCC on 17 September 2013 on the same grounds as the first, but also relying upon the Welwyn principle (i.e. that deliberate concealment of the breach of the planning control prevented reliance upon the 4 year limitation period).
In the meantime, on 27 June 2013 WCC issued an enforcement notice under section 172 of the 1990 Act alleging a material change of use of the barn (as I understand the position, the whole barn) from "an agricultural barn to a mixed use as an agricultural storage barn and a self-contained unit of residential accommodation" 1. The appeal which then followed proceeded on the basis of that description. The notice required the permanent cessation of the residential use, the removal of residential items and the restoration of the building to the layout shown on a previously approved plan.
Mr. Jackson appealed against the notice to the Secretary of State under section 174 of the 1990 Act. The only ground of appeal advanced was under section 174(2) (d), namely at the date when the enforcement notice was issued, no enforcement action could be taken in respect of the breach alleged in the notice. In other words, Mr. Jackson sought to rely on the 4 year limitation period. Ground (a) and the "deemed application" for planning permission to validate the breach of planning control (section 177) did not arise because Mr. Jackson did not pay the appropriate fees.
The appeal was conducted by an Inspector appointed to act on behalf of the Respondent. He held a public inquiry on 4 to 5 March 2014, carried out a site inspection and issued his decision letter on 2 May 2014.
Paragraphs 4 to 13 of the decision letter summarised the factual background to the appeal. Paragraphs 14 to 17 set out the burden and standard of proof and the approach taken by the Inspector to assessing the evidence in a case of this kind, as to which no complaint is made. In paragraphs 18 to 25 the Inspector dealt with the evidence relating to 4 years' continuous use as a dwelling and accepted the agreed position at the inquiry that factually the Appellant had established his case.
At paragraphs 26 to 27 of his decision the Inspector set out his understanding of the "Connor principle" (from R v Chief National Insurance Commissionerex parte Connor [1981] QB 578) as applied in Welwyn. I would prefer to call this the Welwyn principle (because the application of the bonam partem principle in planning enforcement cases was articulated in the decision of the Supreme Court).
At paragraphs 55 to 63 of the decision letter the inspector dealt with the arguments as to whether the Welwyn principle survives the enactment of sections 171BA to 171BC of the 1990 Act and decided that it does. That conclusion gives rise to the first issue in this appeal, the main issue identified in paragraph 3 above.
Paragraphs 28 to 53 of the decision letter set out the Inspector's findings on the application of the Welwyn principle to the facts of this case. He concluded that the Appellant's conduct had amounted to a positive deception of WCC so as to engage the Welwyn principle and deprive him of the benefit of the 4 year limitation period in section 171B(2). If, contrary to ground 1 the Welwyn principle still forms part of the law, ground 2 seeks to challenge the legality of the Inspector's conclusion on that part of the case. I will deal with the issues in that order.
This appeal has been brought under section 289 of the 1990 Act with the permission of Patterson J, granted on 26 June 2014.
Ground 1
I will deal with matters in the following order:-
i) Enforcement provisions in the 1990 Act;
ii) The Welwyn principle;
iii) The amendments made by the Localism Act 2011 (and the Impact Assessment of the Bill);
iv) Planning as a comprehensive code (the Pioneer Aggregates decision);
v) Authorities on "covering the field";
vi) Analysis of the competing arguments.
(i) Enforcement provisions in the 1990 Act
Planning permission is required for the carrying out of any development of land (section 57(1)), which includes the making of any material change in the use of a building or other land (section 55(1).
In Part VII of the 1990 Act a breach of planning control includes the carrying out of development without planning permission (section 171A(1)). A local planning authority has a discretion to issue an enforcement notice where it appears to them (a) that there has been a breach of planning control and (b) that it is expedient to do so having regard to the development plan and other material...
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