Jackson v Secretary of State for Communities and Local Government

The planning enforcement provisions concerning planning enforcement orders did not replace the common-law-influenced statutory construction adopted in Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] 2 AC 304. The Welwyn principle remains available where positive and deliberate deception takes a breach outside the proper scope of the statutory limitation period. Its application depends on the relevant statutory context and the facts. The four criteria identified by Lord Mance are sufficient; no additional requirement of exceptional or truly egregious conduct applies. The principle can apply to a concealed change of use within an existing building, not only to a building erected without permission or used contrary to its permission from the outset.

The claimant appealed under section 289 of the Town and Country Planning Act 1990 against an inspector’s decision upholding an enforcement notice concerning residential use of part of a barn. The inspector accepted that four years’ continuous residential use had been established but held that positive deception deprived the claimant of the benefit of the four-year limitation period.

The principal issue was whether sections 171BA to 171BC, inserted by section 124 of the Localism Act 2011, created an exhaustive planning enforcement order code which replaced the Welwyn principle. The subsidiary issue was whether the inspector had applied that principle correctly.

1. Appeal dismissed. The planning enforcement order code in sections 171BA to 171BC of the Town and Country Planning Act 1990 was supplementary. Parliament had not expressly amended section 171B or indicated that it intended to replace the construction adopted in Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] 2 AC 304.
2. The Welwyn principle is a principle of statutory construction, not an additional private-law power. A person may be denied reliance on a statutory limitation period where positive deception has a sufficient nexus with the statutory provision and would allow the person to profit from undermining the planning process. The four features identified in Welwyn—positive deception integral to the planning process, an intention to undermine that process, actual undermining, and direct benefit from the deception—provide a sufficient framework. No separate test of exceptionality or truly egregious conduct is required.
3. The planning enforcement order provisions did not provide a complete answer in applications for certificates of lawfulness. If they were exhaustive, section 191(3A)(a) could leave a gap where the authority remained deceived until after the section 171B limitation period had expired. That consequence supported treating the new code as an additional procedure rather than an exclusive one.
4. The principle is not confined to cases where a building was erected without planning permission or where the intended unlawful use existed from the outset. It may apply to a change of use within an existing building. The relevant inquiry is whether positive deception concealed the breach to which the applicable limitation period relates.
5. The inspector had correctly applied the four Welwyn criteria. His findings that the claimant had made misleading statements and pursued a strategy intended to conceal the residential use were factual findings open to him. His conclusion was not vitiated by treating the conduct as less shocking than the facts in Welwyn, nor by the fact that the deception concerned conversion works and the subsequent use rather than the original construction of the barn.

The judgment describes an appeal under section 289 of the Town and Country Planning Act 1990 from an inspector’s decision dated 2 May 2014. Permission to appeal was granted by Patterson J on 26 June 2014. The High Court dismissed the appeal.