Deliberate concealment

• Author: Sophie Childs, Tilak A. Ginige, Hannah Pateman
• Position: Department of Law, Bournemouth University, Poole, UK
• Pages: 32-62

Deliberate concealment

Sophie Childs

Department of Law, Bournemouth University, Poole, UK, and

Tilak A. Ginige and Hannah Pateman

Faculty of Science and Technology, Bournemouth University, Poole, UK

Abstract

Purpose –Welwyn Hateld Council vSecretary of State for Communities and Local Government [2009]

EWHC 966 (Admin), Welwyn Hateld Council v. Secretary of State for Communities and Local Government

[2010] EWCA Civ 26 and Welwyn Hateld Council v. Secretary of State for Communities and Local

Government [2011] UKSC 15 (Beesley hereafter) and Fidler v. Secretary of State for Communities and Local

Government [2010] EWHC 143 (Admin), Fidler v. Secretary of State for Communities and Local Government

[2011] EWCA civ 1159 (Fidler hereafter) are two recent cases concerning deliberately concealed breaches of

planning control. The defendants engaged in dishonest and misleading conduct, in an attempt to rely on a

loophole within Section 171B of the Town and Country Planning Act 1990 (T&CPA). This study aims to

critically analyse two solutions which were created to close the loophole; in addition, this study analyses

various alternative remedies that have been suggested, and nally, whether the present law has been

sufcient to remedy the situation.

Design/methodology/approach –The T&CPA is a key piece of legislation regulating planning

controls; Section 171A-C provides the time limits for taking enforcement action against a breach of planning

control. To achieve the above purpose, an evaluation of those provisions will be undertaken in detail.

Subsequently, this study will analyse two solutions which were created to close the loophole; rstly, the

Supreme Court (SC) decision (Welwyn Hateld Borough Council v. Secretary of State for Communities and

Local Government [2011] UKSC 15) and, secondly, the governments’ decision to amend the T&CPA without

awaiting the SC’s decision[1].

Findings –This research concludes that the government should have awaited the SC’s decision before

amending statute to prohibit reliance upon the expiration of time where there is an element of deliberate

concealment. Additionally, this study suggests that the statutory amendments were not required in light of the

SC’s solution in Beesley. As a result of the governments’ ill-considered decision, uncertainty has permeated

through the conveyancing process, causing ambiguity, delays and additional expense in transactions at a time

when a precarious property market needs anything but uncertainty.

Research limitations implications –The scope of this research is limited to deliberate concealment of

breaches of planning control and the four-year enforcement period; whilst considering the consequences of the

solutions proposed, this study does not provide a detailed overview of the planning system, but rather

assumes prior knowledge.

Originality/value –This study offers a unique assessment of the law relating to the deliberate

concealment of planning breaches and offers a thorough criticism of the law with recommendations for reform.

Additionally, a variety of alternative solutions are considered. Both legal academics, planning professionals

and those interested in planning law will nd the paper a thought-provoking digest.

Keywords Development, Environment, Private property, Deliberate concealment, Planning law,

Planning law breaches

Paper type Research paper

1. Introduction to Beesley and Fidler

Planning cases rarely hit the headlines (Edwards, 2012); “enforcement is perhaps the

Cinderella of planning, ignored by most, for most of the time” (Cameron, 2010). Recently,

however, Welwyn Hateld Council were faced with the case of Beesley (Welwyn Hateld

Council v. Secretary of State for Communities and Local Government [2009] EWHC 966

The current issue and full text archive of this journal is available on Emerald Insight at:

www.emeraldinsight.com/1756-1450.htm

IJLBE

9,1

32

Received 4 November 2016

Revised 8 February 2017

Accepted 9 February 2017

InternationalJournal of Law in the

BuiltEnvironment

Vol.9 No. 1, 2017

pp.32-62

©Emerald Publishing Limited

1756-1450

DOI 10.1108/IJLBE-11-2016-0018

(Admin);Welwyn Hateld Council v. Secretary of State for Communities and Local

Government [2010] EWCA Civ 26;Welwyn Hateld Council v. Secretary of State for

Communities and Local Government [2011] UKSC 15). In 2000, the Local Planning Authority

(LPA hereafter) granted Beesley planning permission to build a barn on green belt land, with

the condition it would be used as agricultural storage. Beesley built what resembled the

exterior of a barn; the interior, however, was a three-bedroom house (Townsend, 2011). In

2002, Beesley and his family moved into the barn, they lived there for four continuous years

and in 2006 applied for a certicate of lawfulness of existing use or development (CLEUD

hereafter)[2]. In his application, Beesley ingeniously relied on s.171B(2)[3], stating there had

been a material change of use, a storage barn to a residential dwelling, which took place four

years prior. Subsequently, an application for a CLEUD was made to certify the building as

lawful and immune from enforcement action[1].

Around the same time, Reigate and Banstead Borough Council were left stunned when

what had previously been bales of straw covered by plastic tarpaulin was now a castle

complete with ramparts (BBC, 2015). Fidler (Fidler v. Secretary of State for Communities and

Local Government [2010] EWHC 143 (Admin),Fidler v. Secretary of State for Communities

and Local Government [2011] EWCA civ 1159) commenced building work in 2002, but

concealed the development for four continuous years, working only at night time and via the

disguise mentioned above. Ironically, the LPA visited Fidler with regards to a separate issue

and failed to notice the castle, but inadvertently took photos of the straw bales (BBC, 2015).

Four years after completing the building work, Fidler removed the disguise, believing he had

gained immunity. Planning permission could not have been granted retrospectively, because

the development was on green belt land and therefore would be contrary to the National

Planning Policy Framework (NPPF hereafter) (Department for Communities and Local

Government, 2012). The LPA therefore served an enforcement notice, requiring

demolition[4]. Fidler appealed, arguing that the castle had been substantially complete for

four years and therefore ought to be immune from enforcement action under s.171B(1)[5].

In both cases, the LPAs appeared to be cornered by the unequivocal wording of s.171B[6]

Additionally, the Court of Appeal (CA hereafter) had previously ruled, in the case of Arun

District Council v. First Secretary of State [2006] EWCA Civ 1172 Para 35-36, that the

intentions of the person applying for a CLEUD are irrelevant, even if the application is

dishonest (“Concealed development and change use” [2011] ELR 8). The fact “dishonesty”

did not stop the four-year rule from operating, would undoubtedly encourage the

unscrupulous developer to try his luck (Barclay et al., 2015); as demonstrated by Beesley

(Welwyn Hateld Council v. Secretary of State for Communities and Local Government [2009]

EWHC 966 (Admin);Welwyn Hateld Council v. Secretary of State for Communities and

Local Government [2010] EWCA Civ 26;Welwyn Hateld Council v. Secretary of State for

Communities and Local Government [2011] UKSC 15) and Fidler (Fidler v. Secretary of State

for Communities and Local Government [2010] EWHC 143 (Admin);Fidler v. Secretary of

State for Communities and Local Government [2011] EWCA civ 1159). Evidently, a

substantial loophole existed, which if ignored, would be detrimental to the public’s

condence in the system; the oodgates would open, allowing individuals to exploit the law

(Edwards, 2012, p. 379). Additionally, authorities would need to look carefully at every

development: external inspections alone would be fruitless, because as demonstrated

external appearances can be highly misleading[7]. LPAs would need to be alert to the

possibility of deception in almost every development[7] (p. 35).

The four-year rule originated from the Carnwath report[8], which argued that a breach of

planning control could not have caused harm if the LPA failed to take enforcement action

within a timely manner (Humphreys, 2011, p. 522). For the majority of cases, the time limits

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Deliberate

concealment