Coles & Anor v Lichfield District Council

A planning enforcement order may be made where a breach of planning control has been deliberately concealed to any extent and it is just to make the order having regard to all the circumstances. The statutory test is broader and less stringent than the common-law principle in Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] UKSC 15. The local planning authority’s knowledge is relevant principally to the statutory time limit for applying for an order. A person may deliberately conceal a breach even though the concealment fails to deceive the authority. The court may make an order addressing both an unlawful change of use and operational development where enforcement against the use entails removal of the structure.

The appellants appealed by way of case stated against a decision of District Judge McGarva, sitting at Cannock Magistrates’ Court. The district judge made a planning enforcement order concerning a cottage which had been constructed and occupied as a residence without planning permission.

He found that the appellants had deliberately concealed the cottage’s residential use by maintaining the impression that they lived elsewhere, delaying registration of the cottage as a separate address and delaying council-tax and electoral registration. The central questions were whether the essential statutory ingredients were established and whether the concealment was sufficient to make an order just.

1. Appeal dismissed. The essential ingredients of an application for a planning enforcement order under sections 171BA and 171BC of the Town & Country Planning Act 1990 were established. The appellants’ conduct amounted to deliberate concealment to an extent which made it just to make the order.
2. The district judge’s reference to breaches occurring innocently did not show that he had misunderstood the statutory scheme. Read as a whole, his judgment showed that he identified and applied the section 171BC(1) test. Any error in the reference to innocent breaches was immaterial and related to the justice stage, not to the statutory immunity under section 171B.
3. The local planning authority’s state of knowledge was not equivalent to deliberate concealment. Deliberate concealment may exist even where it fails to deceive the authority. Under section 171BB, knowledge matters to the period for applying for an order, which runs from knowledge of sufficient evidence to justify the application. An unchallenged certificate stating that date was conclusive.
4. The findings that the authority knew of the building but did not identify it as the complained-of structure or realise that it was being used residentially were rationally open to the district judge. The statutory test did not require successful deception.
5. The reference to Kestrel Hydro v Secretary of State for Communities and Local Government [2016] EWCA Civ 784 supported the conclusion that enforcement could address operational development as well as a change of use, even where the structure preceded the use. In this case, the construction and residential use could properly be treated as having coincided.
6. The appellants were ordered to pay £14,000 towards the respondent’s costs, inclusive of VAT, within 28 days.

• High Court (Administrative Court): appeal by way of case stated dismissed. The court upheld the planning enforcement order made below and ordered payment of £14,000 towards the respondent’s costs.
• Cannock Magistrates’ Court: District Judge McGarva made a planning enforcement order and stated the case for the High Court.