Deliberately concealed breaches of planning control and the Welwyn principle

In Welwyn Hatfield Council v Secretary of State for Communities and Local Government [2011] UKSC 15; [2011] PLSCS 97, the Supreme Court held that – as a matter of public policy and despite their apparent strictness – deception on the part of a landowner could disentitle him from relying upon the time limits set out in section 171B of the Town and Country Planning Act 1990 (“the Act”) for taking enforcement action. This has sometimes been referred to as “the Welwyn principle”. The main question for the court in Jackson v Secretary of State for Communities and Local Government [2015] EWHC 20 (Admin); [2015] PLSCS 10 was whether the Welwyn principle survived the subsequent insertion into the Act by Parliament of new sections 171BA to 171BC. These establish a procedure whereby a local planning authority (“LPA”) in England is able to take enforcement action beyond those time limits, in cases where there has been “deliberate concealment”. In other words, did Parliament enact those new sections so as to replace the law laid down by the Supreme Court? The case came about as the result of an inspector, on appeal, applying the Welwyn principle in upholding an enforcement notice issued by the LPA in respect of the residential use of a barn. The appellant appealed to the court under section 289 of the Act. The court held that the Welwyn principle remained good law. Parliament had not used any express language, as is sometimes the case, to disapply or overcome the effect of the decision in Welwyn. Furthermore, it should not be inferred, as a matter of statutory construction, that it intended that the procedure established by the new sections should wholly replace the Welwyn principle. Parliament’s purpose was to extend the enforcement powers available to a LPA. This decision has important practical consequences. Sections 171BA to 171BC of the Act assist a LPA in England, and then only in the context of taking enforcement action. The Welwyn principle has much wider application. It is capable of being of relevance in the case of applications for retrospective planning permission and lawful development certificates, and also in the case of appeals from refusals in each instance. Footnote: In R (on the application of Bonsall) v Secretary of State for Communities and Local Government [2014] EWHC 2022 (Admin) permission has been recently granted for an appeal to the Court of Appeal on this very issue. John Martin is a planning law consultant