Matter of principle

In Jackson v Secretary of State for Communities and Local Government [2015] EWHC 20 (Admin), the High Court had to consider a novel point: where a statute is amended to introduce a new provision addressing an issue which the courts have already concluded can be addressed through the proper construction of an existing provision, what is the effect
on the principle already established by the courts?

Welwyn Hatfield principle

The enforcement of breaches of planning control under part IV of the Town and Country Planning Act 1990 is subject to the time limits in section 171B. Where those limits expire by effluxion of time, the development is treated as lawful, and no enforcement action may be taken.

In Welwyn Hatfield BC v SSCLG [2011] UKSC 15, the Supreme Court held that section 171B had to be interpreted so as to disapply those time limits where, as on
the facts before them, the local planning authority had been deceived by deliberate concealment into not taking enforcement action.

As Welwyn Hatfield was
making its way through the courts, parliament was amending the Planning Act to introduce planning enforcement orders (PEO). The effect of a PEO is that the enforcement time limits are disapplied where the breach of planning control (or any matters constituting it) has been deliberately concealed, and, on application by the local planning authority, the magistrates’ court considers it just to make an order.

Statutory construction

In Jackson, the High Court had to decide whether, as a matter of statutory construction, it was to be inferred that parliament intended the new PEO code to wholly replace the application of the Welwyn principle, or whether it was open to a local planning authority to rely on both as appropriate.

Mr Justice Holgate noted that there were no authorities on the approach which should be taken to interpreting a new code enacted by parliament to deal with a subject matter already covered by judicial construction of existing legislation, particularly where that legislation remained in force without express amendment.

Applying a balance of advantage and disadvantage approach to the competing submissions made to him, Holgate J concluded that the
PEO code provided an additional power to take action and did
not restrict the power of local planning authorities to deal with deliberately concealed breaches to the PEO code. He was particularly influenced by
the following:

• The language used by parliament (including the decision to insert the new PEO provisions alongside section 171B as interpreted by Welwyn) was not sufficient to indicate an intention to replace the principle;
• The fact that the PEO provisions deal solely with deliberate concealment, leaving other serious misconduct (e.g. bribery, coercion, or menaces) to be dealt with, if at all, by continued application of the Welwyn principle;
• The ready ability of the wrongdoer to avoid the effects of the PEO provision through the simple expedient of making an application for a certificate of lawfulness. Once such an application is made, the lawfulness of the development is to be judged as at the date of the certificate application and, in most instances, before the local planning authority has had any opportunity to apply for a PEO disapplying the time limits. The anti-avoidance procedure provided by section 191(3A) of the 1990 Act could therefore be rendered entirely ineffective.

Holgate J also helpfully clarified the application and scope of
the Welwyn principle itself. He rejected the submissions that it applied in only ‘truly egregious cases’ or ‘exceptional cases’; use of these terms by individual members of the Supreme Court was not part of the ratio of the decision.

So, for the present, the
Welwyn principle survives the introduction of the PEO code. However, permission to appeal has been granted, and the appeal is conjoined with Bonsall v SSCLG [2014] EWHC 2022 (Admin), in which the same issue arises, with a listing in November 2015. SJ

Simon Bird QC is a barrister practising from Francis Taylor Building

Copyright & permissions