Deliberate concealment

Authors: Childs, S., Ginige, T.A. and Pateman, H.

http://www.emeraldinsight.com/

Journal: International Journal of Law in the Built Environment

Volume: 9

Issue: 1

Pages: 32-62

Publisher: Emerald

DOI: 10.1108/IJLBE-11-2016-0018

Purpose – Welwyn Hatfield Council v Secretary of State for Communities and Local Government [2009] EWHC 966 (Admin), Welwyn Hatfield Council v. Secretary of State for Communities and Local Government [2010] EWCA Civ 26 and Welwyn Hatfield Council v. Secretary of State for Communities and Local Government [2011] UKSC 15 (Beesley hereafter) and Fidler v. Secretary of State for Communities and Local Government [2010] EWHC 143 (Admin), Fidler v. Secretary of State for Communities and Local Government [2011] EWCA civ 1159 (Fidler hereafter) are two recent cases concerning deliberately concealed breaches of planning control. The defendants engaged in dishonest and misleading conduct, in an attempt to rely on a loophole within Section 171B of the Town and Country Planning Act 1990 (T&CPA). This study aims to critically analyse two solutions which were created to close the loophole; in addition, this study analyses various alternative remedies that have been suggested, and finally, whether the present law has been sufficient to remedy the situation.

Design/methodology/approach – The T&CPA is a key piece of legislation regulating planning controls; Section 171A-C provides the time limits for taking enforcement action against a breach of planning control. To achieve the above purpose, an evaluation of those provisions will be undertaken in detail. Subsequently, this study will analyse two solutions which were created to close the loophole; firstly, the Supreme Court (SC) decision (Welwyn Hatfield Borough Council v. Secretary of State for Communities and Local Government [2011] UKSC 15) and, secondly, the governments’ decision to amend the T&CPA without awaiting the SC’s decision[1].

Findings – This research concludes that the government should have awaited the SC’s decision before amending statute to prohibit reliance upon the expiration of time where there is an element of deliberate concealment. Additionally, this study suggests that the statutory amendments were not required in light of the SC’s solution in Beesley. As a result of the governments’ ill-considered decision, uncertainty has permeated through the conveyancing process, causing ambiguity, delays and additional expense in transactions at a time when a precarious property market needs anything but uncertainty.

Research limitations implications – The scope of this research is limited to deliberate concealment of breaches of planning control and the four-year enforcement period; whilst considering the consequences of the solutions proposed, this study does not provide a detailed overview of the planning system, but rather assumes prior knowledge.

Originality/value – This study offers a unique assessment of the law relating to the deliberate concealment of planning breaches and offers a thorough criticism of the law with recommendations for reform.

Additionally, a variety of alternative solutions are considered. Both legal academics, planning professionals and those interested in planning law will find the paper a thought-provoking digest.

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