Concealment cases: an update

Steven Bell analyses an important High Court planning case involving concealment and a principle set down in the Supreme Court ruling in Welwyn.

In my previous article, Cases involving concealment - where are we now?, on the issue of deliberate concealment I made reference to the fact that it would only be a matter of time before the Court would have to grapple with deliberate concealment in planning enforcement and whether sections 171BA to 171BC Town and Country Planning Act 1990 had replaced the law laid down by the Supreme Court in the Welwyn Hatfield BC v Secretary of State for Communities and Local Government [2011] 2 AC 304 ("Welwyn").

In Welwyn it was held that the limitation periods in section 171B Town and Country Planning Act 1990 should be construed so as not to apply to someone who positively deceives the local planning authority in order to avoid enforcement action being taken. 

At last on 13 January 2015 the issue was clarified in the case of Jackson v Secretary of State for Communities and Local Government [2015] EWHC 20 (Admin) ("the Jackson case").

In the Jackson case the Appellant contended that sections 171BA to 171BC Town and Country Planning Act 1990 did replace the law laid down in the Supreme Court. The Secretary of State argued that those sections simply widened the powers available to authorities.

The case is not novel on its facts but had followed a decision of the Planning Inspector that the principles derived from Welwyn had survived the enactment of sections 171BA to 171BC of the Town and Country Planning Act 1990 and could be relied on.

The judge in the Jackson case favoured the arguments of the Secretary of State (that those sections of the Town and Country Planning Act 1990 simply widened the powers available to authorities) and said that "61...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.." and "68...I conclude that the Welwyn principle has not been replaced...".

This is good news for local planning authorities in that they are not obliged to first pursue a planning enforcement order to the Magistrates Court in cases concerning deliberate concealment. The issue of concealment can be dealt with directly before a Planning Inspector at a planning appeal without having to justify why they did not apply to the Magistrates Court first. 

Steven Bell is a Solicitor at nplaw and can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..

Nplaw won the Lawyers in Local Government Planning, Highways and Environment Award 2014 and the Local Government Partnership & Procurement/Commercial Award 2014.