Paul Bateman & Anor v North Somerset Council

A planning enforcement order may be sought after the ordinary enforcement period where deliberate concealment has occurred. The six-month period under section 171 BB(1) of the Town and Country Planning Act 1990 begins when the local planning authority has evidence sufficient, in its opinion, to justify the application. Since concealment is a statutory precondition, that evidence may need to include evidence of concealment, not merely evidence of breach. A certificate under section 171 BB(2) is conclusive unless shown to be plainly wrong. Positive steps creating a false impression and omissions such as failure to register for council tax may be considered together. Changes in the intensity, character or location of a breach within the same planning unit do not require a fresh application.

North Somerset Council applied for a planning enforcement order concerning land at West Hay Farm. The order was made by District Judge Layton under section 171 BC(1) of the Town and Country Planning Act 1990, following earlier proceedings before lay justices.

The landowners appealed by case stated. They challenged the lay justices’ conclusion that the proceedings were not time-barred, the reliance on their failure to register for council tax as evidence of deliberate concealment, and the taking into account of a caravan which had been replaced before the application. The central issues concerned the operation of the statutory time limit, the meaning of deliberate concealment, and the scope of the apparent breach.

The appeal was dismissed. The court extended time for filing the appellant’s notice and grounds, but rejected all three substantive grounds.

1. Time limit. The presumption of regularity applied to the lay justices’ preliminary ruling, and the appellants had to show an error of law. A certificate under section 171 BB(2) of the Town and Country Planning Act 1990 was conclusive unless plainly wrong. Tanna v London Borough of Richmond was fact-specific and did not establish that evidence of breach alone always triggered the six-month period. Under section 171 BB(1), the relevant evidence had to be sufficient, in the authority’s opinion, to justify the application. Because deliberate concealment was required by section 171 BC(1), that evidence could include evidence of concealment. Any delay could instead be considered when deciding whether it was just to make the order under section 171 BC(1)(b). The certificate was not shown to be plainly wrong. (paras [12]-[16])
2. Deliberate concealment. The district judge had found that information supplied to the planning department differed markedly from information supplied to the housing benefit section and amounted to a deliberate attempt to create a false impression. In that context, the failure to register for council tax was capable of being considered as part of the evidential mix. It was not necessary for that omission, viewed in isolation, to constitute deliberate concealment. (paras [17]-[20])
3. Replacement caravan. Section 171 BC(1)(a) permitted consideration of any matter constituting the apparent breach which had been deliberately concealed. The use of both caravans formed part of the breach within the same planning unit. Replacing one caravan with another did not require the authority to recommence the application process. (paras [21]-[23])

The answers to the three questions were respectively “No”, “No” and “Yes”.

• North Somerset Magistrates’ Court: Lay justices ruled on 2 December 2019 that the proceedings were not time-barred.
• North Somerset Magistrates’ Court: District Judge Layton made a planning enforcement order on 24 January 2022 under section 171 BC(1) of the Town and Country Planning Act 1990.
• High Court (Planning Court): The appeal by case stated was dismissed.