Keeping a low profile

In dealing with ‘less than honest’ appellants who were contesting an enforcement notice directed at the conversion of offices in north London to 28 flats (DCS Number 200-010-073an inspector explained that the four-year rule would not apply only in the case of deliberate deception.

The four-year statutory period was conceived, the inspector recorded, as a period during which a planning authority would normally be expected to discover an unlawful change of use to a dwellinghouse, after which the general interest in proper planning should yield and the status quo prevail. However, the Supreme Court in Welwyn Hatfield v SoS & Beesley [2011] concluded that positive and deliberately misleading false statement by an owner successfully preventing discovery takes the case outside that rationale. The Welwyn Hatfield judgment, she continued, identified four features which would deprive the appellant(s) of the benefit of the four-year limitation period in s171B (2) of the Act: 

  • there was positive deception in matters integral to the planning process; 
  • that deception was directly intended to undermine the planning process; 
  • it did undermine the planning process; and 
  • the wrong-doer would profit directly from the deception, if the normal limitation period were to enable them to resist enforcement. 

The inspector held that deception is positive conduct with the aim to deceive the council and is a high bar to overcome, with the difference between keeping a low profile on the one hand and deliberate misleading conduct to prevent discovery on the other. Therefore, for this assertion to succeed, she reasoned, there needed to be clear evidence of deliberate and positive deception. In the case before her, however, she found that the evidence did not demonstrate that the development was deliberately concealed or that there was a planned course of deception designed to circumvent planning control and escape enforcement. Overall, in her judgement the appellants’ conduct did not amount to the degree of deception necessary to engage the principles set out in Welwyn. The appellants, she judged, appeared to have mostly pursued deliberate inaction, so as to achieve concealment, rather than taking sustained or actively deceptive steps. 

The inspector concluded, on balance, that there was no concealment of the change of use of the property to 28 flats by positive deception in matters integral to the planning process. The Welwyn principle was not engaged, and the appellants were not deprived of the benefit of the four-year limitation period in s171B (2).

Further information concerning the Welwyn Hatfield Supreme Court judgment can be found at section 10.1516 of DCP Online, which concerns concealed development.