Agenda item

Description of application – Use of buildings and land as a stable and riding school without complying with conditions 3, 4 and 7 of permission ref 02/01905 CERTIFICATE OF LAWFULNESS FOR AN EXISTING USE.

Following deferment of this item at the Planning Sub-Committee meeting held on 5 March 2015, the applicant submitted further information comprising of a note from her accountant and an affidavit in support of previous representations regarding activities at the site over the last 10 years.

At the meeting, Members were informed that additional information had been provided and a number of factual issues had come to light regarding the application.

Members were concerned about the validity of the application and believed that on a balance of probabilities there had been a deliberate concealment by the applicant of the activities carried out on the site.

The Council’s legal representative pointed out that the report correctly advised that the use had been continuous for the required period of time. However, where it could be shown that there had been a deliberate concealment of the activities carried out on the site, the applicant would be deprived of immunity from enforcement action provided under s171B (3) of the Town and Country Planning Act 1990 (as amended).

The Council’s legal representative made reference to statute and the principle set out in Welwyn Hatfield Council v Secretary of State for Communities and Local Government [2011] UKSC 15 in relation to deliberate concealment of breaches of planning control.  In particular, the planning enforcement order (concealed development) code set out in s171BA, s171BB and s171BC had to be construed as a supplementary procedure which widened the powers available to local authorities, rather than an exhaustive replacement for the principal set out in the Welwyn Hatfield case. 

Some Members were familiar with the Welwyn Hatfield case, which was summarised by the legal representative at the meeting. Members were advised that they did not need to go as far as applying an ‘’exceptionality’’ test or consider whether the conduct of the applicant had been ‘’truly egregious’’ to establish deliberate concealment (Jackson v Secretary of State [2015] EWHC 20 (Admin) – 13 January 2015). However, it must be shown that the applicant’s conduct was such that it fell within the scope of the Connor Principal, which sets out the following four tests, articulated in the Welwyn Hatfield judgement, to establish whether there had been a deliberate concealment:-

(1) there is positive deception in the planning process;

(2) the deception is intended to undermine the planning process;

(3) the deception does undermine the planning process; and

(4) the applicant stands to profit directly from the deception.

Members were updated on the additional evidence submitted by the applicant and additional information discovered by the Council, which suggested a deliberate concealment

The legal representative read out each test and received the following Member responses to each:-

1)  There is a positive deception in the planning process

Members concluded there had been a positive deception in the planning process based on the information provided by the applicant in her planning application submitted to the Council in May 2002.  The applicant stated that she intended to use the land for her sole pleasure and for her family’s horses, however, in her affidavit which she submitted as part of her additional information, she stated that she moved her riding school business onto the site in mid-June 2002, approximately two weeks after submitting the planning application.  Members found that the evidence, based on such a short timeframe, pointed to the applicant’s  intention of using the site for commercial purposes contrary to statements made in writing to accompany the planning application. Members noted the relevant conditions attached to the permission. These were as follows:-

‘(3)  The use of the existing buildings shall only be for the private stabling of horses in the ownership of the person in possession of the land/buildings and shall not be used for or in connection with any commercial use;

(4)  The sand school shall only be for the use of horses in the ownership of the person in possession of the land/buildings and shall not be used for or in connection with any commercial use whatsoever;

(7)  The use shall be solely for the benefit of the applicant and no other party.’

Members agreed that the applicant sought to undermine the planning process by failing to apply for a variation of the conditions. The applicant had made eight planning applications in the past at her previous property at Garden Cottage, Rookery Road, Downe and was therefore fully aware of the planning process. The question was asked, why did she not apply to vary the conditions that she agreed to prior to moving her horse riding school onto the site? This led Members to conclude that she had sought to undermine the planning process by taking advantage of the immunity offered under planning legislation, by keeping a low profile, in the hope that the breach would remain undetected. 

2)  The deception is intended to undermine the planning process

Members concluded that the applicant intended to undermine the planning process by failing to engage with the Council. She was fully aware of the specific conditions attached to the planning permission and the planning application process and could have applied to vary the conditions before she moved her business onto the site. She also failed to engage with the Council as demonstrated by the lack of any evidence of payment of business rates. The commercial use of the premises was potentially contrary to national and local green belt policy, which the Council has not had the opportunity to consider due to the applicant’s failure to engage with the Council. It is highly probable that the outcome of the planning application may have been different had the applicant disclosed the relevant facts which are now apparent regarding the commercial use of the site.  

3)  The deception does undermine the planning process

Members concluded that failure to apply to vary the conditions and provide any evidence of business rates undermined the planning process because this prevented the Council from considering an application and the planning enforcement department from being alerted about the breach. The applicant’s conduct amounted to a positive deception based on these facts.

4)  The applicant stands to profit directly from the deception

Members concluded that by operating a commercial riding school the applicant stood to profit directly from the deception.

Members having considered the objections, report and additional information, RESOLVED that a CERTIFICATE OF LAWFULNESS FOR AN EXISTING USE BE REFUSED for the following reason:-

The evidence produced to support the application has been arrived at by a process of deliberate concealment and as such the applicant should be deprived of the immunity offered under s171B (3) of the Town and Country Planning Act 1990 (as amended).

IT WAS FURTHER RESOLVED that ENFORCEMENT ACTION BE AUTHORISEDas against the commercial use of the site as it was considered inappropriate within the Green Belt, contrary to Policy G1 of the Unitary Development Plan and the NPPF.

Councillor Fawthrop's vote in favour of refusal and enforcement action was noted.