Deliberate Concealment

February 9, 2017

By Peter Dixon

The Administrative Court has dismissed an appeal by way of case stated against a District Judge’s decision to make a Planning Enforcement Order under Section 171BA of the 1990 Act.

The case concerned a dwelling known as Squirrel Cottage which had been erected by the appellants without planning permission in 2008. There had been complaints to the LPA at the time about “a timber building” but although the LPA made various investigations it did not uncover evidence that the building was being used as a dwelling until many years later, when it then applied for a Planning Enforcement Order on the grounds that the breach had been deliberately concealed.

The appellants contended (1) that they could not conceal something which the LPA knew about and gave 12 examples of the LPA’s knowledge of the building and 5 examples of the LPA’s knowledge of the residential use (2) that there had been no deliberate concealment, at worst there had been non-disclosure (3) that it would be unjust to make an order given the age of the appellants and that the building was their home.

The District Judge found that whilst the LPA had been aware of the building they had not been aware of the residential use until much later, as a result of steps taken deliberately by the appellants to create the impression that they lived elsewhere and not to draw attention to the building’s use.  The appellants’ conduct had to be viewed in the light of the previous complex planning history of the site which involved the erection of multiple buildings and various changes of use all without planning permission, all of which showed that the appellants were very knowledgeable about the planning system and were to be judged on that basis.

Whilst the District Judge found that the appellants’ conduct did not meet the threshold in Welwyn Hatfield Borough Council v SSCLG [2011] UKSC 15 it was sufficient to engage the power in Section 171BA.

On reviewing the District Judge’s decision Mrs Justice Laing dismissed the appellants’ appeal holding that the essential ingredients of an application under Section 171BA of the 1990 Act were made out on the evidence and that the District Judge was right to find that there had been deliberate concealment to the extent necessary to engage the statutory provisions.  As to the LPA’s knowledge, Laing J found:

“The fact that deliberate deception is discovered does not mean that there has been no deliberate concealment. It simply means that the deliberate concealment has failed.”

Coles v Lichfield District Council [2016] EWHC 3059 (Admin)