Inspector finds no positive deception and grants certificate of lawful use on appeal

Douglas Scott acted for the Appellant in her successful appeal against the refusal to grant her a certificate of lawfulness of existing use or development (“CLEUD”). The Council had refused to grant the CLEUD on the basis of positive deception. However, at the Inquiry the Planning Inspector found that the Council’s refusal to grant the CLEUD was not well founded.

This case is a reminder that active inaction is often not enough to constitute the positive deception required to remove the time-bar in planning enforcement proceedings

Background

The Appellant had previously lived in a caravan that she had placed on her land. A stable was also situated on the land. Following years of various planning applications, decisions and correspondence with the Council, the High Court ordered that the caravan be removed from the site in 2018. The Appellant complied with the High Court order and at the same time took up residency in the stables.

Shortly before moving into the stables the Appellant had phoned the council tax department at the Council telling them of her address change. However, the memo detailing the call only recorded that the address needed to be amended to remove the reference to the mobile home.

After four years of living at the stables, the Appellant submitted an application for a CLEUD. The Council refused to grant the CLEUD relying on the principle in Welwyn Hatfield BC v SSCLG [2011] UKSC 15 that positive deception deprives a person from the 4-year limitation period in section 171B(2) of the Town and Country Planning Act 1990. Note, in England the time limit has now changed to 10-years (section 171B(2)(a) of the 1990 Act).

The Inspector’s decision

The Inspector found that whilst the Appellant did not want to draw the Council’s attention to the fact that she had moved into the stables, the residential use of the stables would have been discernible to those walking nearby not only from the internal lights but from the domestic rubbish bins outside the property. In addition, the Appellant had continued to pay Council Tax and the linked address was the stables.

The Inspector noted that had a Council officer visited the property or even taken a “cursory examination” of the Council Tax records then it would have provided evidence that someone was living at the address.

The Inspector concluded that the “appellant appears to have mostly pursued deliberate inaction rather than taking sustained or actively deceptive steps” (paragraph 32). As such, the principles in Welwyn Hatfield were not engaged and the CLEUD granted.

A copy of the decision can be found here.