Malcolm Dowden on planning enforcement & immunity
In swift succession the Court of Appeal and the High Court have ruled on immunity from enforcement where four years have passed since a breach of planning control. In Welwyn Hatfield v Secretary of State for Communities and Local Government [2010] EWCA Civ 26, the Court of Appeal reluctantly concluded that a house “disguised” as a barn was immune, and that the owner was entitled to a certificate of lawful use or development. In Fidler v Secretary of State for Communities and Local Government [2010] EWHC 143 (Admin) an enforcement notice was upheld where a new house had, for four years, been concealed behind straw bales and tarpaulin.
The Town and Country Planning Act 1990, s 171B provides immunity from enforcement action after the end of the period of four years following substantial completion of operations “consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land”. Once a breach of planning control has become immune from enforcement, the owner is able to apply for a certificate of
