Bonsall v Secretary of State for Communities And Local Government & Anor [2015] EWCA Civ 1246

[2015] EWCA Civ 1246

Case Nos: C1/2014/1402 and C1/2015/0336

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

PLANNING COURT

Mr Justice Stuart-Smith ([2014] EWHC 2022 (Admin))

Mr Justice Holgate ([2015] EWHC 20 (Admin)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 08/12/2015

Before

LORD JUSTICE RICHARDS

LORD JUSTICE SALES

MR JUSTICE BAKER

Between

David BonsallAppellant

(1)Secretary of State for Communities and Local GovernmentRespondents

(2) Rotherham Metropolitan Borough CouncilRespondent

Nigel Keith JacksonAppellant

Secretary of State for Communities and Local GovernmentRespondent

Westminster City CouncilInterested Party

Paul Brown QC and Alexander Booth (instructed by Keystone Law) for Appellants

Rupert Warren QC (instructed by The Government Legal Department) for Secretary of State

for The Councils were not represented and did not appear on the appeals

Hearing Hearing date : 4 November 2015

Judgment

Lord Justice Richards :

[1]In Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government

[2011] UKSC 15

[2011] 2 AC 304

(“Welwyn”), the Supreme Court held that the time limits laid down in section 171B of the Town and Country Planning Act (“the 1990 Act”) for enforcement action in respect of breaches of planning control did not apply in a case of positive deception designed to avoid enforcement action within those time limits. Shortly thereafter, by section 124 of the Localism Act 2011 (“the 2011 Act”), Parliament inserted new sections 171BA to 171BC into the 1990 Act whereby in a case of deliberate concealment a local planning authority could apply to the magistrates’ court for a planning enforcement order (“PEO”) permitting enforcement action outside the time limits in section 171B. The issue in these appeals is whether the enactment of those new provisions removed the effect of the decision in Welwyn in relation to cases of deliberate concealment, so that local planning authorities seeking to enforce outside the section 171B time limits in such a case must follow the PEO procedure and cannot rely on the Welwyn approach.

[2]In each of the two cases before us, it was held by an inspector on an enforcement notice appeal that there had been positive deception by reason of which, on the basis of the decision in Welwyn, the normal time limit for enforcement did not apply; that decision was upheld by the High Court on an appeal under section 289 of the 1990 Act; and permission was subsequently granted for a further appeal to this court.

The statutory scheme at the time of the decision in Welwyn

[3]This part of my judgment describes the statutory scheme considered by the Supreme Court in Welwyn. For that reason I refer to the statutory provisions in the past tense. As explained below, however, all the relevant provisions remain in force today: they have been supplemented by additional provisions but their wording has not been altered. Whether their meaning or effect has been altered by the additional provisions is of course the issue in the appeals.

[4]The time limits for enforcement action were to be found in section 171B of the 1990 Act. That section read, so far as material:

“171B. Time Limits (1) Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed. (2) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach. (3) In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach.”

[5]Section 171A(1) defined “breach of planning control” as “(a) carrying out development without the required planning permission; or (b) failing to comply with any condition or limitation subject to which planning permission has been granted”. By section 171A(2), the taking of enforcement action included the issue of an enforcement notice (as defined in section 172).

[6]The time limits in section 171B fed into the enforcement process in two ways. First, by section 174(2)(d), one of the grounds on which an appeal might be brought against an enforcement notice was that “at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by [the matters stated in the notice]”. Secondly, the expiry of the time for enforcement action was one basis upon which an application could be made under section 191 for a certificate of lawfulness of existing use or development. Section 191 provided, in material part: “191. Certificate of lawfulness of existing use or development(1) If any person wishes to ascertain whether – (a) any existing use of buildings or other land is lawful; (b) any operations which have been carried out in, on, over or under land are lawful; or (c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.

(2) For the purposes of this Act uses and operations are lawful at any time if – (a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and (b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force.

(3) For the purposes of this Act any matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful at any time if – (a) the time for taking enforcement action in respect of the failure has then expired; and (b) it does not constitute a contravention of any of the requirements of any enforcement notice or breach of condition notice then in force.

(4) If, on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application. … (6) The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed.” (a) any existing use of buildings or other land is lawful; (b) any operations which have been carried out in, on, over or under land are lawful; or (c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful, (a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and (b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force. (a) the time for taking enforcement action in respect of the failure has then expired; and (b) it does not constitute a contravention of any of the requirements of any enforcement notice or breach of condition notice then in force.

The decision in Welwyn

[7]In Welwyn, a Mr Beesley had been granted planning permissions to construct an agricultural barn, subject to a condition that it be used only for the storage of hay, straw or other agricultural products. He constructed a building which to all external appearances was the permitted barn but internally was a dwelling house with full facilities. He and his wife moved in and lived there continuously for four years. He then submitted an application under section 191(1)(a) for a certificate of lawfulness of use of the building as a dwelling house. The council refused the certificate applied for but an inspector granted it on appeal, holding that the building had been in use as a dwelling house for more than four years and that the situation fell within section 171B(2), so that no enforcement action could be taken. The inspector’s decision was quashed by the High Court but restored by the Court of Appeal. The Supreme Court reversed the decision of the Court of Appeal on two grounds. The first, relating to whether there was a change of use within section 171B(2), is not material to the present case. The second and material issue was whether Mr Beesley’s deceit should preclude him from obtaining a certificate even if section 171B(2) was otherwise applicable. This was a new point: the argument had proceeded in the Court of Appeal, in accordance with the general understanding at the time, on the basis that the time limits in section 171B had to be applied in accordance with the literal language of the statute.

[8]The factual basis on which the court proceeded in relation to the second issue was that Mr Beesley had intended to deceive the council from the outset. The aim of his conduct was said to be, firstly, to obtain a planning permission which would not have been granted had the application been for a dwelling house; secondly, to conceal the fact that what was being built was and was to be a dwelling house; and thirdly, to live in the house without being detected or therefore having enforcement steps taken for the four-year period stated in section 171B(1) and (2), after which a certificate would be sought under section 191. But Lord Mance said that “[t]he real gravamen of the council’s case is to be found in the deception involved in the obtaining of false planning permissions which Mr Beesley never intended to implement, but which were designed to and did mislead the council into thinking that the building was a genuine hay barn and so into taking no enforcement step for over four years” (paragraph 43). This was described as “deception in the planning process and directly intended to undermine its regular operation” (ibid.).

[9]Lord Mance proceeded to examine relevant statements of principle, in particular as to public policy, in Halsbury’s Laws of England, Bennion on Statutory Interpretation, R v Chief National Insurance Commissioner, ex p. Connor

[1981] QB 758

, R v Secretary of State for the Home Department, ex p. Puttick

[1981] QB 767

and R v South Ribble Borough Council, ex p. Hamilton

(2001) 33 HLR 104

. Counsel had pointed to the warning in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment

(1980) 47 P&CR 157

that planning law is a comprehensive code imposed in the public interest, into which the courts should not import principles or rules derived from private law unless expressly authorised by Parliament or necessary in order to give effect to the legislative purpose. As to that, however, Lord Mance stated:

“50. … This is a salutary reminder, and it links to Bennion’s first message quoted in para 46 above. But since the principles discussed in Halsbury and Bennion and in cases already discussed (notably South Ribble and Puttick) involve statutory interpretation, I do not think that the planning legislation can be treated as axiomatically immune from their application.”

[10]He noted that Mr Beesley’s conduct in obtaining the planning permissions by deception did not involve any identifiable and provable criminal offence under the law as it then stood. But he did not regard that as determinative:

“53. Since the ultimate question is whether it can have been the intention of the legislator that a person conducting himself like Mr Beesley can invoke the benefits of sections 171B and 191(1), I do not consider that there can be any absolute principle that public policy can only bear on the legislator’s intention in a context where there has been the commission of a crime. The principle described in the passages cited from Halsbury and Bennion is one of public policy. The principle is capable of extending more widely, subject to the caution that is always necessary in dealing with public policy …. 54. Whether conduct will on public policy grounds disentitle a person from relying upon an apparently unqualified statutory provision must be considered in context and with regard to any nexus existing between the conduct and the statutory provision. Here, the four-year statutory periods must have been conceived as periods during which a planning authority would normally be expected to discover an unlawful building operation or use and after which the general interest in proper planning control should yield and the status quo prevail. Positive and deliberately misleading false statements by an owner successfully preventing discovery take the case outside that rationale …. 55. If the owner of an unauthorised house were to bribe or by menaces coerce a planning authority officer into turning a blind eye to unlawful development for four years, it is inconceivable that the building owner could then rely on the four-year period, even though the owner would not have to (and surely would not) mention anything but his four-year occupation in his attempt to bring himself within the literal language of the sections. It is true that the council would then be able to show that a criminal offence had been committed …. However, if a planning authority were to discover an unauthorised development or use, and the property owner were, in order to avoid enforcement action within the four years, falsely to assure the planning authority that the four years had not expired, and that he intended to remove or cease the development before they did, and so succeed in avoiding enforcement action during the four years, I very much doubt whether the owner could thereafter rely upon sections 171B and 191, merely because no criminal offence had been committed. 56. Here, Mr Beesley’s conduct, although not identifiably criminal, consisted of positive deception in matters integral to the planning process (applying for an obtaining planning permission) and was directly intended to and did undermine the regular operation of that process. Mr Beesley would be profiting directly from this deception if the passing of the normal four-year period for enforcement which he brought about by the deception were to entitle him to resist enforcement. The apparently unqualified statutory language cannot in my opinion contemplate or extend to such a case.”

Lord Mance’s conclusion was as follows:

“58. For the reasons I have given [in relation to the first issue], I do not consider that sections 171B(2) and 191(1)(a) are applicable to the facts of this case. Had I considered otherwise, I would have concluded that their language could not have been intended to cover the exceptional facts of this case, where there was positive deception in the making and obtaining of fraudulent planning applications, which was directly designed to avoid enforcement action within any relevant four-year period and succeeded in doing so ….”

[12]Lord Phillips, Lord Walker, Lady Hale and Lord Clarke all agreed with Lord Mance, without giving separate reasons. Lord Rodger also agreed, but gave short reasons of his own. They included this:

“63. In that situation, where Mr Beesley deliberately set out to conceal the true nature of the development during the whole four-year period, with the aim that the council would be prevented (as happened) from taking enforcement action within the four-year period, there is no justification for cutting off the council’s right to take enforcement action. To hold otherwise would frustrate the policy, indeed the raison d’être, of section 171B(2) of the 1990 Act: in short, it is unthinkable that Parliament would have intended the time limit for taking enforcement action to apply in such circumstances. In my view, therefore, in this situation section 171B(2) does not prevent the council from initiating enforcement action ….”

[13]Lord Brown also gave reasons of his own for reaching the same conclusion. He asked whether it was “appropriate to import into this apparently self-contained legislative planning scheme the principle of public policy that no one should be allowed to profit from his own wrong” (paragraph 69). He said that at first blush there might be thought to be two difficulties in the path of this public policy argument. As to the first:

“70. …the 1990 Act appears on its face to preclude the taking of enforcement action. It might be thought one thing to construe the Act in the light of the public policy principle so as to deny Mr Beesley the certificate that he was seeking (the grant of which would no doubt enhance his house’s value and saleability) – a certificate, as we have seen Mummery LJ describe it, ‘consolidating the fruits of the fraud’; quite another thing to construe it as enabling the council, section 171B(2) notwithstanding, to enforce against the use (by now apparently protected and thus lawful) beyond the expiry of the four-year limitation period. 71. On true analysis, however, there is nothing in this point. If, as was held in R v Chief National Insurance Comr, Ex p Connor [1981] QB 758, monetary payments, or, as decided in R v Secretary of State for the Home Department, Ex p Puttick [1981] QB 767, registration as a United Kingdom citizen, could lawfully be withheld on public policy grounds … despite in each case their having acquired an ostensibly absolute statutory right to these respective benefits, so too a statutory bar on enforcement action can in my judgment be disapplied on similar public policy grounds ….”

[14]He went on to say that “[t]he second problem said to confront the importation into the 1990 Act of the public policy principle (the Connor principle as I shall now call it) is that it would run counter to the plain intention of a legislative scheme as a whole” (paragraph 72). He described that argument as a serious one and one by which he was initially troubled. It would be impossible to superimpose upon the statutory scheme any sort of broad principle to the effect that no one guilty of wrongdoing could be allowed to benefit from the limitation provisions of the 1990 Act. Breaches of planning control statutorily said to become immune from enforcement under section 171B involved a spectrum of wrongdoing. He cited cases to illustrate that point. But he said that Mr Beesley’s conduct had been in the highest degree dishonest, indeed that “the dishonesty involved in this case is so far removed from almost anything else that I have ever encountered in this area of the law that it appears to constitute a category of its own” (paragraph 81). He said “almost” because of the “no less astonishing” case of Fidler v Secretary of State for Communities and Local Government

[2010] EWHC 143 (Admin)

. I will consider that case in a moment.

[15]Lord Brown referred finally to the Localism Bill then before Parliament which, if enacted, would amend the 1990 Act by inserting new sections expressly to deal with issues of concealment: those are the provisions described in detail below, the effect of which is the subject of the present appeals. He said:

“84. … Without wishing to comment on the details of these provisions, I would observe only, first, that their proposed inclusion in the legislation surely indicates that the legislative scheme as a whole can hardly be thought incompatible with some application of the Connor principle; secondly that, pending the proposed statutory amendments, only truly egregious cases such as this very one (and perhaps Fidler too) should be regarded as subject to the Connor principle. I simply do not accept that amending legislation is required before this salutary principle of public policy can be invoked. I do recognise, however, that, as matters presently stand, it should only be invoked in highly exceptional circumstances.”

[16]The case of Fidler referred to by Lord Brown represents a footnote to the Welwyn decision. It concerned the construction of a mock Tudor castle concealed behind a 40 foot shield of straw bales and tarpaulin in order to take advantage of the four-year enforcement time limit. The claim to immunity from enforcement action failed before an inspector and in the High Court on the ground that the overall building operations included the erection and removal of the straw bales and tarpaulin, so that substantial completion did not take place before removal of the straw bales; which meant that enforcement action was taken within the four-year period. Permission to appeal was originally granted in the light of the Court of Appeal’s decision in Welwyn but was subsequently set aside on the basis of the principles set out in the decision of the Supreme Court in Welwyn, since “upon the facts found by the Inspector, this is a paradigm case of deception which disentitles an appellant from relying upon the four-year rule”: see

[2011] EWCA Civ 1159

, in particular per Sullivan LJ at paragraph 13.

The introduction of the PEO procedure

[17]I will set out the provisions governing the new PEO procedure, as inserted into the 1990 Act by section 124 of the 2011 Act, before examining the history and purpose of this part of the statute. The provisions inserted were not subject to material change during the passage of the Localism Bill through Parliament.

[18]Sections 171BA to 171BC were inserted into the 1990 Act so as to follow on immediately after section 171B: “171BA.Time limits in cases involving concealment(1) Where it appears to the local planning authority that there may have been a breach of planning control in respect of any land in England, the authority may apply to a magistrates’ court for an order under this subsection (a ‘planning enforcement order’) in relation to that apparent breach of planning control.

(2) If a magistrates’ court makes a planning enforcement order in relation to an apparent breach of planning control, the local planning authority may take enforcement action in respect of – (a) the apparent breach, or (b) any of the matters constituting the apparent breach, at any time in the enforcement year.

(3) ‘The enforcement year’ for a planning enforcement order is the year that begins at the end of 22 days beginning with the day on which the court’s decision to make the order is given, but this is subject to subsection (4). … (5) Subsection (2) – (a) applies whether or not the time limits under section 171B have expired, and (b) does not prevent the taking of enforcement action after the end of the enforcement year but within those time limits.” 171BB. Planning enforcement orders: procedure (1) An application for a planning enforcement order in relation to an apparent breach of planning control may be made within the 6 months beginning with the date on which evidence of the apparent breach of planning control sufficient in the opinion of the local planning authority to justify the application came to the authority’s knowledge. (2) For the purposes of subsection (1), a certificate – (a) signed on behalf of the local planning authority, and (b) stating the date on which evidence sufficient in the authority’s opinion to justify the application came to the authority’s knowledge, is conclusive evidence of that fact. …

(4) Where the local planning authority apply to a magistrates’ court for a planning enforcement order in relation to an apparent breach of planning control in respect of any land, the authority must serve a copy of the application – (a) on the owner and on the occupier of the land, and (b) on any other person having an interest in the land that is an interest which, in the opinion of the authority, would be materially affected by the taking of enforcement action in respect of the apparent breach.

(5) The persons entitled to appear before, and be heard by, the court hearing an application for a planning enforcement order in relation to an apparent breach of planning control in respect of any land include – (a) the applicant, (b) any person on whom a copy of the application was served under subsection (4), and (c) any other person having an interest in the land that is an interest which, in the opinion of the court, would be materially affected by the taking of enforcement action in respect of the apparent breach.

(6) In this section ‘planning enforcement order’ means an order under section 171BA(1). 171BC. Making a planning enforcement order (1) A magistrates’ court may make a planning enforcement order in relation to an apparent breach of planning control only if – (a) the court is satisfied, on the balance of probabilities, that the apparent breach, or any of the matters constituting the apparent breach, has (to any extent) been deliberately concealed by any person or persons, and (b) the court considers it just to make the order having regard to all the circumstances. (2) A planning enforcement order must – (a) identify the apparent breach of planning control to which it relates, and (b) state the date on which the court’s decision to make the order was given. (3) In this section ‘planning enforcement order’ means an order under section 171BA(1).” (a) the apparent breach, or (b) any of the matters constituting the apparent breach, (a) applies whether or not the time limits under section 171B have expired, and (b) does not prevent the taking of enforcement action after the end of the enforcement year but within those time limits.” (a) signed on behalf of the local planning authority, and (b) stating the date on which evidence sufficient in the authority’s opinion to justify the application came to the authority’s knowledge, (a) on the owner and on the occupier of the land, and (b) on any other person having an interest in the land that is an interest which, in the opinion of the authority, would be materially affected by the taking of enforcement action in respect of the apparent breach. (a) the applicant, (b) any person on whom a copy of the application was served under subsection (4), and (c) any other person having an interest in the land that is an interest which, in the opinion of the court, would be materially affected by the taking of enforcement action in respect of the apparent breach. (a) the court is satisfied, on the balance of probabilities, that the apparent breach, or any of the matters constituting the apparent breach, has (to any extent) been deliberately concealed by any person or persons, and (b) the court considers it just to make the order having regard to all the circumstances. (a) identify the apparent breach of planning control to which it relates, and (b) state the date on which the court’s decision to make the order was given.

[19]In addition, a new subsection (3A) was inserted into section 191 of the 1990 Act, as follows:

“191 … (3A) In determining for the purposes of this section whether the time for taking enforcement action in respect of a matter has expired, that time is to be taken not to have expired if – (a) the time for applying for an order under section 171BA(1) (a ‘planning enforcement order”) in relation to the matter has not expired, (b) an application has been made for a planning enforcement order in relation to the matter and the application has neither been decided nor been withdrawn, or (c) a planning enforcement order has been made in relation to the matter, the order has not been rescinded and the enforcement year for the order (whether or not it has begun) has not expired.” (a) the time for applying for an order under section 171BA(1) (a ‘planning enforcement order”) in relation to the matter has not expired, (b) an application has been made for a planning enforcement order in relation to the matter and the application has neither been decided nor been withdrawn, or (c) a planning enforcement order has been made in relation to the matter, the order has not been rescinded and the enforcement year for the order (whether or not it has begun) has not expired.”

[20]Holgate J provided a helpful summary of key features of the new provisions, to the following general effect:(1) The magistrates’ court may only grant a PEO under section 171BA(1) if satisfied on the balance of probabilities that the breach which appears to have occurred, or any of the matters constituting the apparent breach, has to any extent been deliberately concealed by any person, and the court thinks it “just to make the order having regard to all the circumstances” (section 171BC(1)). Thus, the legislation employs a relatively simple and broad definition of deception which goes beyond the Welwyn type of case. But the broad scope of that definition is balanced by a requirement that the court should be persuaded that the making of the PEO is just in all the circumstances.

(2) Section 171BB(1) imposes a time limit for applying for a PEO of 6 months beginning with the date on which evidence of the apparent breach of planning control sufficient in the opinion of the local planning authority to justify the application came to the authority’s knowledge, but the authority is able to issue a conclusive certificate on that factual matter, or to self-certify (section 171BB(1) and (2)).

(3) Once a PEO is granted, the authority has a period of 22 days and one year (“the enforcement year”) from the date on which the court’s decision is given within which to take enforcement action (section 171BA(2)).

(4) The enforcement year may expire after the time limits in section 171B (e.g. in a case where deception is not discovered until after the limits in section 171B expire). But the authority may still take enforcement action within the section 171B time limits if they would expire later than the enforcement year (section 171BA(5)).

(5) Where a PEO is obtained and an enforcement notice is issued within the enforcement year, then even if the breach occurred more than four years before that action was taken, the inspector dealing with an appeal against that notice will not have to consider evidence or legal submissions on deception and its effect upon the application of section 171B. The same applies to an appeal against the refusal of a certificate of lawful use or development (section 191(3A)).

[21]The Localism Bill was introduced into Parliament on 13 December 2010, after the decision of the Court of Appeal in Welwyn. It was going through Parliament at the date of the hearing before the Supreme Court in Welwyn (7-8 February 2011) and at the date of the Supreme Court’s decision in that case (6 April 2011). The Supreme Court’s decision was issued while there was still ample opportunity to amend the Bill, and we were told that some reference was made to the decision in the course of debates; but no material amendment was made. The Act received Royal Assent on 15 November 2011 and the relevant provisions came into force on 6 April 2012.

[22]A departmental Impact Assessment dated January 2011 explained that “stronger powers against deliberate deception” was one of four measures proposed in the Bill to strengthen local authorities’ enforcement powers. In relation to that measure, a section on “policy objectives and rationale for intervention” stated that development which took place without authorisation might be considered lawful if it remained in situ without enforcement action being taken within the time limits prescribed; and “[t]his even includes cases where development has been concealed from public view until the time limit for enforcement action has passed (subject to the outcome of a case to be heard in the Supreme Court)”. The Government was said to be concerned that some applicants for planning permission were misleading planning authorities about their proposals, as for example “where development is significantly different from the development that was granted planning permission, has been disguised as a different type of development, or has been concealed completely”. Reference was made in that connection to two high profile cases going through the courts at the time (plainly Welwyn and Fidler); and it was said that whilst such cases were likely to be rare, they could receive considerable publicity and therefore do much to undermine the importance of obtaining planning permission and to erode public confidence in the enforcement process. The objective of the measure was then set out as follows:

“the Government wants to ensure that people who deliberately deceive the local planning authority about the nature of their intended development, or who conceal it until the window for enforcement action has expired, are no longer able to profit from this practice. The local planning authority would have to obtain a ‘Planning Enforcement Order’ from the Magistrates’ Court to establish deliberate deception or concealment. The Order would have to be applied for within 6 months of the deception being detected. Once an Order had been made the local planning authority would then have 12 months in which to initiate enforcement action: otherwise known as ‘restarting the clock’. The intention is to stop such deceptions occurring in the future by removing the incentive to deceive associated with time limits for enforcement action.”

[23]A departmental Memorandum dated 8 March 2011 on the compatibility of the Bill with the European Convention on Human Rights described the proposed PEO procedure and stated that if an order was granted it would make it possible for a local planning authority to take enforcement action in circumstances where it would not previously have been able to do so, thus extending the reach of any interference with rights under

Article 8 of the Convention

or under Article 1 of the First Protocol. But any such interference was considered to be a proportionate means of achieving the legitimate aim of protecting the rights of others by protecting the environment, and the further aim of preventing abuse of the planning system. The PEO procedure could only be used in circumstances where a person had acted to conceal a breach of planning control in order to avoid enforcement action; and it contained the necessary safeguards, in particular through the role of the court and the matters about which the court had to be satisfied before it could make an order. The procedure was also considered to meet the requirements of

Article 6 of the Convention

The facts in Mr Bonsall’s case

[24]In 1989 Mr Bonsall obtained planning permission for the erection of a barn. The barn was substantially complete by the end of 1992. It was subsequently found that it had been constructed in accordance with the planning permission and had been used at least for a time for agricultural purposes. In 2006-2007, however, Mr Bonsall converted the barn into a dwelling; and in 2012 he applied for a certificate of lawfulness of use of the building as a dwelling, on the basis that it had been in continuous use as a dwelling for 4 years. The application was refused by the local planning authority. An appeal was dismissed by an inspector on the ground that Mr Bonsall had not met the burden of proving that the building had been occupied continuously as a dwelling during the four year period.

[25]Thereafter, in May 2013, the local planning authority issued two enforcement notices in respect of the building. The material notice alleged a breach of planning control by reason of the change of use of the barn to residential use without planning permission. The material ground of appeal against that notice was ground (d), based on the contention that the time limit for enforcement action had expired by the date of the notice. The inspector hearing the appeal concluded, on the evidence before him, that on the balance of probability the premises had been in continuous residential use for 4 years prior to the date of the enforcement notice. But he went on to hold, on the basis of the Supreme Court decision in Welwyn, that the 4 year time limit for enforcement action did not apply:

“30. When taken in the round, it appears to me that Mr Bonsall planned and executed a scheme to attempt to obtain permission for a dwelling by deceiving the local planning authority and local residents into believing that no development had taken place. He went to considerable lengths to make it extremely unlikely that his residential conversion and occupancy would be discovered. His concealment of the true nature of the development until emerging with an application for a LDC appears to me to amount to deception on a scale comparable to that which occurred in the Welwyn Hatfield and Fidler caess. Accordingly, I have come to the conclusion that the four-year time limit for taking enforcement action does not apply and that the appeal on ground (d) should fail.”

The appeal on other grounds was also dismissed and the enforcement notice was upheld.

[26]Mr Bonsall’s further appeal to the High Court, under section 289 of the 1990 Act, was dismissed by Stuart-Smith J. Mr Bonsall appeared in person before the judge and did not raise the point now before this court. The point was raised for the first time on his behalf in amended grounds of appeal to this court. Permission to appeal on that ground was granted by Sullivan LJ.

The facts in Mr Jackson’s case

[27]In 2004 Mr Jackson built an agricultural barn pursuant to an earlier planning permission. It was not built in accordance with the approved plans but retrospective planning permission for the barn as built was sought and obtained. In late 2007 to early 2008, dormer windows and roof lights were inserted into the roof slopes. On a date between 6 February 2009 and 26 June 2009 Mr Jackson’s son began to use the barn as a dwelling. Following a complaint or query about residential use, an enforcement officer visited the site in April 2009 but did not enter the barn. The visit led only to the identification of the fact that the dormer windows and roof lights had been installed without the necessary planning permission. Mr Jackson was invited to legalise the position by making an application for planning permission. He did so, and planning permission for those features was granted in August 2009.

[28]On 2 April 2013 and 13 June 2013, Mr Jackson made successive applications under section 191 for a certificate of the lawfulness of use of the first floor of the barn as a dwelling, on the basis that it had been used as such for a continuous period of four years. Each application was refused on the ground that the council was not satisfied that the first floor of the barn had been converted into a dwelling at least four years before the date of the application. The refusal of the second application relied in addition on Welwyn, alleging deliberate concealment of the breach of planning control.

[29]On 27 June 2013 the council issued an enforcement notice under section 172, alleging a material change of use of the barn from use as an agricultural barn to “a mixed use as an agricultural storage barn and a self-contained unit of residential accommodation”. An appeal to an inspector proceeded on the basis of that description. The only ground of appeal was ground (d), that at the date of the enforcement notice no enforcement action could be taken in respect of the breach alleged in the notice. The inspector accepted the agreed position at the inquiry that factually Mr Jackson had established his case. He held, however, that the Welwyn principle had survived the enactment of sections 171BA to 171BC of the 1990 Act and that Mr Jackson’s conduct had amounted to a positive deception of the council so as to engage the Welwyn principle and deprive Mr Jackson of the benefit of the four-year limitation period.

[30]An appeal under section 289 against the inspector’s decision was heard by Holgate J. The issues before the judge were(1) whether sections 171BA to 171BC had replaced the Welwyn principle in cases of deliberate concealment, and

(2) if the Welwyn principle had not been replaced, whether the inspector erred in his application of the principle. The judge found against Mr Jackson on both issues.

[31]Permission to appeal to this court was granted by Sullivan LJ in relation to the first issue alone. Whilst Mr Jackson disputes a number of the inspector’s findings with regard to the second issue, he accepts that it is not open to him to appeal to this court in respect of those findings.

The reasoning of Holgate J

[32]I need only consider the reasoning of Holgate J, in his judgment in Mr Jackson’s case, because, as already explained, the relevant issue was not raised before Stuart-Smith J in Mr Bonsall’s case.

[33]Holgate J referred to the fact that in enacting sections 171BA to 171BC “Parliament did not make any express amendment of section 171B and did not use any such express language, as is sometimes the case, to disapply or overcome the effect of a judicial decision, for example an authority interpreting existing legislation” (paragraph 52); and that the issue, therefore, was “whether, as a matter of statutory construction, it should be inferred that Parliament intended that the PEO code should wholly replace the application in Welwyn of the bonam partem [public policy] principle to read down the scope of section 171B, when dealing with the concealment of breaches of planning control by deliberate deception” (paragraph 53).

[34]He dismissed the appellant’s reliance on authorities in which legislation enacted by Parliament had been treated as “covering the field”, or stating the law exhaustively on a particular subject, so as to replace earlier law. He held that those authorities did not assist on “the approach which the Court should take to interpreting a new code enacted by Parliament to deal with a subject already covered by judicial construction of existing legislation, particularly where that legislation remains in force without express amendment” (paragraph 57) and that the issue remained as he had stated it. He considered that he should address that issue “by seeking to identify any indications in the legislation pointing either way, along with advantages and disadvantages of the competing arguments, in order to determine what is more reasonable and help identify Parliament’s intention” (ibid.).

[35]He proceeded to set out a list of indicators or arguments supporting the Secretary of State’s contention that the PEO code was not an exhaustive replacement for the Welwyn principle in concealment cases, followed by a list of indicators or arguments supporting the appellant’s contention that Parliament intended the PEO code to replace the Welwyn principle in concealment cases. I will not set out those lists here. The important points are considered below in the context of the submissions made to this court and the discussion of those submissions. The conclusion

the judge drew from them was this:

“61. Plainly, there are substantial arguments in favour of each of the competing views. However, in my judgment the balance of the arguments favours the Respondent’s view. The language used by Parliament (including the decision to insert sections 171BA to 171BC alongside section 171B), is not sufficient to indicate an intention to alter the scope of section 171B as interpreted in Welwyn. In particular, I cannot detect any intention to enlarge the scope of section 171B and then to make that provision subject to the PEO code, so that concealment could only be dealt with under that code. 62. Putting to one side the linguistic approach, in my judgment a comparison between the effects of the two rival interpretations, as summarised above, also supports the view that Parliament did not intend to replace the Welwyn construction of section 171B with the new provisions. The balance of advantage and disadvantage supports the Respondent’s case. Certainly, I do not think that the advantages supporting the Appellant’s case are sufficiently strong to support the imputation of an intention by Parliament to replace Welwyn in concealment cases.”

[36]The judge went on to say that he was reinforced in that view by further reasoning relating to applications for certificates or lawful use or development under section 191. That reasoning was not put to the parties before him, is challenged on appeal to this court and is not supported by the Secretary of State. It is not necessary to the judge’s decision, and in the circumstances I need not consider it.

The case for the appellants

[37]Mr Brown QC, who (with Mr Alexander Booth) appeared only on behalf of Mr Jackson below but represented both appellants before us, advanced the overarching submission that Holgate J was wrong to conclude that in situations where a PEO is available it is open to a local planning authority to ignore that procedure and to fall back on the Welwyn principle. He sought to make good that submission by reference to three relevant grounds of appeal.

[38]The first ground is that, in situations where a PEO is available, there is no longer any justification for disapplying the words of section 171B on grounds of public policy. Mr Brown drew attention to passages in the judgments of the Supreme Court in Welwyn to the effect that the issue in that case was whether conduct could on public policy grounds “disentitle a person from relying upon an apparently unqualified statutory provision” (per Lord Mance at paragraph 54), or whether “a statutory bar on enforcement action can … be disapplied” on public policy grounds (per Lord Brown at paragraph 71). He submitted that now that Parliament has introduced the PEO procedure to cover cases of deliberate concealment, the matter that troubled the Supreme Court in Welwyn can no longer arise and the reasons of public policy that led the court to disapply the words of s.171B no longer exist. The words of the section should therefore now be given their obvious and unqualified meaning. If the PEO procedure had been part of the 1990 Act all the time, it could not credibly be suggested that the Supreme Court would have approached section 171B in the way it did in Welwyn.

[39]The second ground advanced by Mr Brown is that where Parliament has specifically legislated to cover the field, as it has done in relation to situations governed by the PEO procedure, the legislation should not be construed in a way that allows that procedure to be sidestepped or ignored. When introducing the concept of the PEO to regulate the position in respect of unauthorised development which has been concealed, Parliament struck a deliberate and careful balance between the public interest in ensuring that there can be enforcement in respect of breaches of planning control, and countervailing interests such as the need for certainty in conveyancing transactions, the private interests of landowners and the need to ensure that when a local planning authority becomes aware of deliberate concealment it does not then delay unnecessarily before taking enforcement action. That the procedure was seen as striking an appropriate balance is made clear by the departmental Memorandum on the European Convention on Human Rights. Having gone to those lengths in providing for the PEO procedure, Parliament cannot have intended to leave local planning authorities free to fall back on the Welwyn principle instead of going down the PEO route. No authority would go down the PEO route if it could rely on the Welwyn principle instead. To hold that an authority was free to rely on the Welwyn principle would drive a coach and horses through the carefully crafted PEO regime.

[40]Mr Brown cited a number of authorities which, although relating to very different contexts, were relied on as showing that where Parliament has laid down a comprehensive code or detailed regime with procedural or other safeguards, it cannot have intended that a public authority should be free to act in a way that circumvents the code or regime:(1) The essential question in Attorney-General v De Keyser’s Royal Hotel

[1920] AC 508

was whether the Crown was entitled to take possession of land by virtue of the prerogative, without payment of compensation as of right, rather than pursuant to statutory provisions which conferred a right to compensation. The answer to that question was that “if the whole ground of something which could be done by the prerogative is covered by the statute, it is the statute that rules” (per Lord Dunedin at page 526). The underlying principle was that Parliament intended the statutory code to prevail. As Lord Atkinson put it (at page 539), “there is not a trace of a suggestion that the Crown was left free to ignore these statutory provisions, and by its unfettered prerogative do the very things the statutes empowered the Crown to do, but free from the conditions and restrictions imposed by the statutes”; and “[one] cannot in the construction of a statute attribute to the Legislature (in the absence of compelling words) an intention so absurd”.

(2) In B v Forsey

[1988] SLT 572

it was held that a comprehensive statutory scheme laying down the powers of hospital authorities in relation to the detention of mentally disordered persons was intended to be exhaustive, so as impliedly to remove any common law powers of detention that the authorities might otherwise have had. An important factor affecting the decision was that the statutory scheme included safeguards that were inconsistent with the retention of common law powers that were not subject to those safeguards (see per Lord Keith at

[1988] SLT 572

at 576K).

(3) Marcic v Thames Water Utilities Ltd

[2003] UKHL 66

[2004] 2 AC 42

, concerned the failure of a public authority to prevent a sewer from flooding. It was held that a cause of action in nuisance was inconsistent with the statutory scheme regulating the authority’s functions. It was held further that the statutory scheme was the answer to a claim for breach of rights under the European Convention on Human Rights, in that the balance between the interests of the individual and the public interest had been struck by the statutory scheme which itself was compatible with the Convention.

(4) R (Best) v Chief Land Registrar

[2015] EWCA Civ 17

[2015] HLR 17

, was a very different kind of case. The court held that section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which introduced a new criminal offence of trespassing in residential premises, was not intended to impact on the law of adverse possession under the Land Registration Act 2002. One of the reasons for that conclusion was that if section 144 did have such an impact, it would produce arbitrary results, and “Parliament is not lightly to be taken to have legislated with the intention of producing such capricious and arbitrary effects upon a carefully crafted and comprehensive statutory regime such as that contained in the LRA” (per Sales LJ at paragraph 80).

[41]The third ground advanced by Mr Brown is directed at the judge’s balancing of considerations supporting the parties’ respective contentions. Mr Brown criticised various of the individual points that were said to support the Secretary of State’s contention that the PEO regime is not an exhaustive replacement for the Welwyn principle in concealment cases. He also submitted that the judge was wrong to characterise the case for Mr Jackson as attributing to Parliament an “intention to enlarge the scope of section 171B and then to make that provision subject to the PEO code” (paragraph 61 of the judge’s judgment): the case below, as in this court, was that there is no longer a reason to depart from the natural meaning of section 171B, and it is obvious that in a case of deliberate concealment falling within sections 171BA to 171BC, section 171B takes effect subject to the exercise by the local planning authority of its powers under the PEO code. In addition, Mr Brown submitted that the “balance” struck by the judge lacked any reasoned analysis and was erroneous, and that in any event the exercise should not really be treated as one of balance at all.

Discussion

[42]A key consideration to keep in mind when assessing Mr Brown’s submissions is that the exercise carried out by the Supreme Court in Welwyn was one of interpretation of the statute. Public policy was used as a principle of interpretation. By reference to that principle the court held that, on the true construction of the statute, the time limits in section 171B did not apply in cases of positive deception (and indeed in other situations referred to in the course of the reasoning, such as bribery or coercion). It was not a case of relying on public policy to depart from the true meaning of the section, but of reading the apparently unqualified language of the section as being subject to an implied limitation. That is clear from the passages of the judgments set out above, e.g. Lord Mance’s statement that “the ultimate question is whether it can have been the intention of the legislator that a person conducting himself like Mr Beesley can invoke the benefits of sections 171B and 191(1)” (paragraph 53 of the judgment), and the answer he gave that “their language could not have been intended to cover the exceptional facts of this case”; Lord Rodger’s observation that it was “unthinkable that Parliament would have intended the time limit for taking enforcement action to apply in such circumstances” (paragraph 63); and Lord Brown’s rejection of the objection that “[it] might be thought to be one thing to construe the Act in the light of the public policy principle so as to deny Mr Beesley the certificate that he was seeking …; quite another thing to construe it as enabling the council, section 171B(2) notwithstanding, to enforce against the use … beyond the expiry of the four-year limitation period” (paragraph 70).

[43]Once it is recognised that the decision in Welwyn concerned the true meaning of section 171B, it can be seen that on the appellants’ case the meaning of that section must have changed on the introduction of sections 171BA to 171BC into the 1990 Act. It would be a change of meaning even if what was done in Welwyn was, as Mr Brown put it, to “disapply the ordinary meaning” of section 171B on grounds of public policy. But there is nothing in the new sections, or in the legislation that inserted them into the 1990 Act, to suggest a legislative intention to change the meaning of section 171B as interpreted by the Supreme Court. Parliament was fully aware of the Supreme Court’s decision. If it wanted to remove the effect of that decision, on the basis that with the introduction of the PEO procedure it was unnecessary (at least in cases of deliberate concealment) to interpret section 171B as the Supreme Court had done, there was ample opportunity to do so by way of an amendment to the Localism Bill during its passage through Parliament. But no material change was made to the Bill following the decision. That is the strongest of indications that it was not Parliament’s intention, in enacting the PEO provisions, to remove the effect of the Welwyn decision.

[44]I would add that nothing said by the Supreme Court in Welwyn itself suggests that the members of the court considered that they were applying some form of short-term fix which would fall away once sections 171BA to 171BC were introduced. They were concerned simply with the interpretation of the existing section 171B. It is true that Lord Brown said that “pending the proposed statutory amendments, only truly egregious cases such as this very one (and perhaps Fidler too) should be regarded as subject to the Connor principle” (paragraph 84). But he was not thereby saying that the construction he placed on section 171B would change if the statutory amendments were introduced. Indeed, he relied on the proposed amendments as a sure indication that “the legislative scheme as a whole can hardly be thought incompatible with some application of the Connor principle” (ibid.). It is not profitable to speculate how the Supreme Court might have interpreted section 171B if the additional provisions had formed part of the statute at the time. What matters is that the section was held to have a particular meaning, and one should in my view be very slow to conclude that that meaning was then altered sub silentio by the introduction of the PEO procedure in sections 171BA to 171BC.

[45]I am not impressed by Mr Brown’s submission, under the second ground of appeal, that by the PEO procedure Parliament has legislated to cover the field and that the legislation should not be construed in a way that allows the procedure to be sidestepped or ignored. There is an overlap between the PEO procedure and the Welwyn principle but the overlap is far from complete. On the one hand, the PEO procedure is narrower than the Welwyn principle, since it applies only where an apparent breach of planning control has been deliberately concealed, whereas the Welwyn principle extends to cases of dishonesty or criminality, such as bribery or coercion, which would not necessarily amount to deliberate concealment. On the other hand, the Welwyn principle applies only to particularly serious cases, whereas the PEO procedure applies where an apparent breach of planning control has “to any extent” been deliberately concealed. The appellants’ case has to be that in the area of overlap Parliament intended the PEO procedure to be exclusive and to displace reliance on the meaning given to section 171B in Welwyn, but that the meaning of the section remains unchanged in so far the Welwyn principle is capable of applying outside the area of overlap. One only has to state that proposition to see how strained an interpretation the appellants seek to place on the statute.

[46]I do not think that the cases relied on by Mr Brown in support of the second ground of appeal, such as Attorney-General v De Keyser’s Royal Hotel,assist on this question. I accept that they were all concerned with issues of statutory construction and that the difference in context is not itself a decisive factor. But the decision in each case that a statutory scheme was intended to displace other powers or causes of action, or (in the case of Best) that a statutory provision was not intended to have any impact on an existing statutory scheme, depended upon the need to avoid absurdity, inconsistency or arbitrary effects that would otherwise arise, having regard to the particular features of those cases. There is no absurdity, inconsistency or arbitrariness in section 171B continuing, after the enactment of sections 171BA to 171BC, to have the meaning it was held to have in Welwyn.

[47]Mr Brown’s arguments about the checks and balances inherent in the PEO procedure, features which the Department relied on as showing the compatibility of the new provisions with the European Convention on Human Rights, take one nowhere. Mr Brown disavowed any suggestion that the decision in Welwyn was in breach of the Convention; and although the Supreme Court did not lay down anything about procedures, the principle established in Welwyn is perfectly capable of being applied in a Convention-compliant manner. In neither of the two cases before us is it contended that the inspector’s decision under challenge was in breach of the Convention. More generally, if a local planning authority sought to apply the Welwyn principle in support of enforcement action after an excessive delay or otherwise in breach of the principles of public law or relevant Convention rights, it would be open to challenge either by way of an appeal under section 174 or, more probably, by way of judicial review: the appropriate procedure was the subject of a helpful joint note from counsel after the conclusion of the hearing before us, but I think it unnecessary to consider the point more fully or to express any concluded view on it for the purposes of the present appeals.

[48]Nor do I accept Mr Brown’s submission that if the Welwyn principle survives in relation to cases of deliberate concealment it will drive a coach and horses through the PEO regime. There are good reasons why a local planning authority may find the PEO procedure attractive in an individual case. For example, the extent of concealment may be insufficient, or arguably insufficient, to engage the Welwyn principle but sufficient to justify the making of a PEO so as to enable enforcement action to be taken outside the normal time limit in section 171B. Use of the PEO procedure may also provide a short-cut to effective enforcement by obviating an appeal against an enforcement notice or simplifying the scope of such an appeal. That is because enforcement pursuant to a PEO removes the possibility of an appeal on ground (d) of section 174(2) (i.e. that it is too late to take enforcement action), and we were told that that is the ground most commonly relied on in enforcement appeals.

[49]There will, on the other hand, be cases where there is real value in being able to rely on the Welwyn principle rather than going down the route of the PEO procedure. Holgate J identified this point at paragraph 59(viii) of his judgment. Local planning authorities may face real difficulties in obtaining information on the history of a site, particularly when dealing with individuals who have used deception in order to conceal their activities. An authority may have taken enforcement action without having any reason to think that a concealment issue is likely to arise during an appeal against an enforcement notice and therefore without having taken steps to obtain a PEO. If concealment should subsequently become an issue at a public inquiry into the appeal, it would be disadvantageous if the authority could not ask the inspector to deal with the deception at the inquiry by applying the Welwyn principle, and was required instead to recommence enforcement action, beginning with an application for a PEO.

[50]I find nothing in the particular circumstances of the cases of Mr Bonsall and Mr Jackson, and the way in which the issues of deception arose for consideration in those cases and were determined in them, to cause any concern about the continued ability of local planning authorities to rely on the Welwyn principle in contexts such as these.

[51]I think it unnecessary to address the detail of Mr Brown’s third ground of appeal. Nothing turns on the criticisms of the particular way in which Holgate J balanced the points for and against each side’s position. I have covered important aspects of the judge’s balancing exercise in the considerations already discussed. It will be clear that I agree with his conclusion.

[52]Taking all the above considerations into account, I am satisfied that Parliament did not intend, by enacting the PEO provisions, to remove the effect of the decision of the Supreme Court in Welwyn in relation to cases of deliberate concealment, The PEO provisions were included in the Localism Bill at a time when it was not known what approach the Supreme Court would adopt to section 171B, but following the Supreme Court’s decision in Welwyn the PEO procedure was left in the Bill, and subsequently enacted, as an alternative and additional, not an exclusive, means of permitting enforcement outside the normal time limit in cases of deliberate concealment. The result is consistent with the legislative objective of strengthening local planning authorities’ enforcement powers.

Conclusion

[53]For the reasons given, I would dismiss both appeals.

Lord Justice Sales :

[54]I agree. Mr

Justice Baker :

[55]I also agree.