Welwyn Hatfield case still good law 14Jan2016

In Welwyn Hatfield Council -v- Secretary of State for Communities and Local Government [2011] UKSC 15, the Supreme Court held that the unauthorised erection and use of a building as a dwellinghouse had not become lawful even though the statutory limitation period for enforcement action of four years since its construction had passed.


The developer in the Welwyn case had applied to the council for, and was granted, planning permission to construct a barn. What he actually built, however, was a house disguised to look like a barn. As Lord Mance put it, the building:


“was to all external appearances the permitted barn, with walls in profiled metal sheeting, a roller-shutter door, two smaller doors and eight roof lights. Internally it was a dwelling house with full facilities, including garage, entrance hall, study, lounge, living room, toilet, storeroom, gym and three bedrooms, two of them with en suite bathrooms, and connected to mains electricity, water and drainage and a telephone line.”


The developer had deliberately set out to deceive the council from the outset, with the intention of eventually obtaining a certificate of lawfulness to authorise development that he knew would never be granted planning permission. The Supreme Court held that, where there is positive deception designed to avoid enforcement action within statutory time limits, those time limits would not apply.


Prompted by Welwyn and by another case involving deception, Fidler v Secretary of State for Communities and Local Government and Reigate and Banstead Borough Council [2010] EWHC 143 (Admin), Parliament amended the Town and Country Planning Act 1990 by inserting new sections 171BA to 171BC. These sections allow local councils to apply to the magistrates’ court for a “planning enforcement order”, which allows enforcement action outside the statutory time limits, in cases of deliberate concealment.


The recently decided case of Bonsall v Secretary of State for Communities and Local Government & Anor [2015] EWCA Civ 1246 considered the interaction between the Welwyn decision and planning enforcement orders. In each of the cases considered by the Court of Appeal in Bonsall, there had been positive deception on behalf of the developers in question. For that reason, two separate planning inspectors had decided on appeal that the normal time limits for enforcement did not apply, in line with the decision in Welwyn.


The developers argued in the Court of Appeal that, in circumstances where a planning enforcement order is available to a local council, the council is not permitted to ignore that procedure and rely on the Welwyn principle. As sections 171BA to 171BC represented a complete statutory code for dealing with cases of concealment, there was no longer any justification for continuing to follow the judgment in Welwyn. As such, the statutory limitation periods on enforcement action should not have been disapplied by the inspectors when deciding the original planning appeals.


The Court of Appeal disagreed. The Court held that Parliament did not intend, when enacting the planning enforcement order provisions, to remove the effect of the Supreme Court’s decision in Welwyn. The relevant legislation was enacted after the decision in Welwyn and was not amended in any way in light of that judgment. Parliament must, therefore, have intended it to be an alternative and additional means of permitting enforcement outside of the statutory time periods and not a replacement for the principle set out in Welwyn.


Bonsall is an important case and makes it clear that Parliament’s intention in providing councils with a new enforcement tool in the shape of planning enforcement orders was to make enforcement easier, not harder. It will make it still more difficult to profit from deception within the planning system from now on.