We’ve been a bit quiet on enforcement matters to date, but you may not know we love a good enforcement case! Over the last year or so we’ve been working ‘both sides of the fence’ for various clients including local planning authorities, landowners and developers who have had challenging enforcement problems, all over the country.
This has led us to appeal on quite a few occasions and we’ve felt very much at ‘the coalface’. Quite a few of our cases have been testing water that has not really been tested before, which is professionally very satisfying.
Speaking of which, we are aware of a recent interesting judgment from the High Court which they dismissed following an appeal from the Magistrates Court.
The case is McCaffrey v Dartmoor National Park Authority [2023] 2 WLUK 341.
In summary, the appellant who had changed an agricultural barn to a residential dwelling was subject to a complaint to the enforcement team at the council. The appellant then responded to the council convincing them that the barn was not in residential use. Following further investigation, the appellant then admitted it had been used as a dwelling, but that as it had been in use as such for more than 4 years, it was immune from enforcement action under the ‘4 year rule’. The council then applied to the magistrates' court for a planning enforcement order.
The appellant challenged the order arguing that to amount to deliberate concealment, what was required were positive acts, as opposed to omissions. The High Court disagreed setting out that there was no distinction between omissions and positive acts - a series of omissions could amount to deliberate concealment. For example, the appellant's use of his mother's address and registering at other properties for the electoral register were relevant factors that spoke to deliberate concealment.
This is a helpful reminder that what you choose not to disclose can amount to concealment in such cases and this of course is a reminder of the case of Mr Fidler and his (albeit more physical) deliberate concealment of a new house, built behind straw bales and making the same case for immunity from enforcement action.
If we can help you with an enforcement case, please get in touch. Bear in mind that if you have been served with a planning contravention notice or enforcement notice, you are required to respond quickly so don’t delay seeking advice!
