Bonsall v Secretary of State for Communities And Local Government & Anor

The planning enforcement order procedure introduced by the Localism Act 2011 did not replace the statutory construction established in [2011] UKSC 15. The ordinary enforcement time limits in the Town and Country Planning Act remain subject to the public-policy limitation applicable to exceptional cases of positive deception or deliberate concealment. A planning enforcement order is an alternative and additional route, not an exclusive code. The regimes overlap only partly: the statutory procedure may apply to concealment to any extent, whereas the judicial principle is confined to particularly serious cases.

Two appeals concerned enforcement notices issued after alleged breaches of planning control had continued beyond the ordinary four-year limitation period. Inspectors held that the appellants had deliberately concealed residential conversions and, applying [2011] UKSC 15, concluded that the time limit did not apply. The decisions were upheld in the High Court in [2014] EWHC 2022 (Admin) and [2015] EWHC 20 (Admin). The central issue was whether the planning enforcement order provisions inserted by the Localism Act 2011 had made that earlier judicial principle unavailable in cases of deliberate concealment.

1. Disposition. Both appeals were dismissed. The inspectors and the High Court had correctly concluded that the ordinary time limit could be unavailable where the appellants’ conduct fell within the principle established in Welwyn [2011] UKSC 15.
2. Construction of section 171B. The Supreme Court’s decision in Welwyn was an exercise in statutory interpretation. It construed the apparently unqualified time limits in the Town and Country Planning Act as subject to an implied public-policy limitation in exceptional cases of positive deception designed to prevent enforcement. It was not a departure from the statutory language based on free-standing public policy.
3. Effect of the later legislation. Parliament was aware of Welwyn when enacting the Localism Act 2011. It made no material amendment to remove the decision’s effect. That was a strong indication that Parliament had not intended to alter the meaning of section 171B sub silentio. The planning enforcement order provisions therefore created an alternative and additional means of obtaining enforcement outside the ordinary time limits, rather than an exclusive procedure.
4. Scope and practical operation. The two regimes did not overlap completely. The planning enforcement order procedure applied where concealment had occurred to any extent, subject to the statutory requirements that it be deliberate and that an order be just in all the circumstances. The Welwyn principle was narrower and concerned particularly serious cases, but could extend beyond deliberate concealment to other serious dishonesty or criminality. Authorities could choose the statutory procedure where appropriate, but could still rely on Welwyn where the relevant facts emerged during enforcement proceedings. The principle remained capable of Convention-compliant application. The court expressed no concluded view on the procedural route for challenging reliance on it after excessive delay or breach of public-law or Convention standards.

• Court of Appeal (Civil Division): dismissed both appeals.
• High Court of Justice, Queen’s Bench Division, Planning Court: dismissed Mr Bonsall’s appeal under section 289 of the Town and Country Planning Act in [2014] EWHC 2022 (Admin), and dismissed Mr Jackson’s appeal in [2015] EWHC 20 (Admin).