Why Plato Is Wrong
February 13, 2011 15 Comments
“Honesty is for the most part less profitable than dishonesty.” – Plato
We all wait with bated breath for the judgment of the Supreme Court on the appeal of Secretary of State for Communities and Local Government & another v. Welwyn Hatfield Borough Council, being the appeal against the decision of the Court of Appeal to allow Mr Beesley his Certificate of Lawfulness for ‘the barn that never was’.
For those of you who are unaware of the facts in Mr Beesley’s case (where have you been?!) Beesley applied for permission to erect a hay barn. He was granted permission to erect a hay barn. Mr Beesley erected what was, externally, a hay barn. But internally it was fitted out as a dwelling. And it was smack in the Metropolitan Green Belt.
Mr Beesley accepted that he deliberately deceived the Borough Council when he applied for permission for a barn, as although he applied for a hay barn he never intended to construct a barn. He accepted his intention was at all times to build and reside in it as a dwelling. He took care in the course of its construction and subsequent residential use to ensure that it did not come to the attention of the council. No Building Regulations approval was ever sought, nor did he register on the Electoral Roll there. Four years and six days after moving in to the property, Beesley applied for a Certificate of Lawfulness for the dwelling.
The Court of Appeal ruled that the proper application of s171B of the Town and Country Planning Act 1990 was that Mr Beesley’s dwelling was immune from enforcement action. Reading the judgment (which you can find here) one can almost hear how strenuously gritted the teeth of the Court must have been as they gave Beesley his Certificate. There are plenty of questions raised by their Lordships that “the legislation in its existing form is open to abuse” (per Richards LJ at para 35) and that “It is a surprising outcome which decent law-abiding citizens will find incomprehensible” (per Mummery LJ at para 38).
It is however a situation that readers of this blog will know is not unique or without precedent to those involved in planning enforcement.
What to do? While we wait for the Supreme Court to see if the arguments on fundamental aspects of public policy and principles of law and justice win the day (see Mummery LJ’s comments at para 46 and 47 of the Court of Appeal judgment) I want to offer readers of this blog a practical solution that can be implemented right now.
As Mummery LJ observed, Beesley’s representations to the LPA were not true. That means they were misrepresentations. Regular readers will be well used to my pushing them out of their comfort zones and i’m going to do it again. How many planners have ever thought about the Fraud Act 2006?
One definition of fraud (there are a few) is set out at section 2 of the Fraud Act 2006:
“A person is in breach of this section if he dishonestly makes a false representation and intends by that false representation to make a gain for himself or another.”
Hopefully there are lightbulbs pinging on above your heads as you read this…if not, let me help you a bit more. A false representation is a representation that is untrue or misleading and the maker of the representation knows that it is or might be untrue or misleading.
How ‘true’ is an application for a structure that the applicant never intends to erect? Might that representation be said to be untrue or misleading? If one were to submit a planning application for a building you never intend to erect but instead intend to use as cover for another unlawful structure – is that an honest course of action? So when you submit your untrue or misleading application, are you being honest?
No lightbulb yet? What about the ‘gain’ you might be asking. Well, when you get your certificate of lawfulness and have a dwelling where you previously had agricultural land, I feel fairly safe in asserting that the value of that land has likely as not increased. Probably it’s increased substantially. Especially if it’s somewhere like an AONB or the Metropolitan Green Belt…
And there’s more…there is no time limit on bringing a prosecution for fraud. Not like there is for enforcement action.
“Well” you might say “that’s all great, but a prosecution for fraud isn’t going to get rid of the dwelling like effective enforcement action will, is it?”. And you’d be right, it won’t. But hopefully i’ve been a good teacher and you’re all itching to shout “CONFISCATION!” (if you’re not then get reading).
When you’ve prosecuted for fraud – well, that would be financial gain from criminal conduct, wouldn’t it? – think confiscation. You confiscate every single penny that the dwelling is now worth. And because you’ve all read my other posts you’ll know that you’re going to be confiscating the gross value of the house. The defendant can’t claim the building costs against that – in fact you as the prosecutor will assume that the building costs are also criminal proceeds and ADD it to the total amount to be confiscated unless the defendant can prove a legitimate source for the expenditure.
How many of these successful prosecutions would you need to advertise before there was a significant drop-off in this type of activity? Not many, i’d bet.
Enforcement officers, think about it. You can take every single penny out of the pocket of people who would otherwise be immune from enforcement and therefore outside your reach.
Planning advisors and lawyers, think about it. When you were advising your client about time limits and enforcement, did you advise them about this risk?
And that’s it. Even without the Supreme Court weighing in. Maybe dishonesty isn’t quite as profitable as Plato thought…
Questions? Get in touch.
Scott
About Scott Stemp
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Scott,
Interesting piece, though your advice might soon be superseded. The Localism Bill, for all its faults, will include a clause making clear that a deliberate attempt to deceive will mean you don’t get your Cert of Awfulness. Of course, the devil will be in the drafting – how deliberate is deliberate? The famous hay barn example would obviously fall foul of it, but what if I seperate my granny annexe to the point it becomes a seperate dwelling – have I deliberately deceived the LPA? I’m sure there is more mileage in this for planners and barristers alike!
HP
You’re right Helpfulplanner – and I can’t help but think that the Government’s attempt to rectify the problem with their proposed clause 104 of the Localism Bill (extended time limits) – specifically the proposed ‘new’ s171BC of the 1990 Act may well have unintended effects:
1) It might cut across Welwyn Hatfield’s case before the Supreme Court, who may in light of the proposed changes more readily take the view that the planning process ‘as is’ is an administrative process that requires sufficient certainty to enable developers to know where they stand (as opposed to it involving elements of moralistic judgements on honesty etc) and that any amendments/alteration to that administrative process should be for Parliament alone;
2) The current drafting of the proposals in clause 104 (at s171BC) do not limit the extension of time limits to cases of deliberate deception or dishonesty. The current proposals would appear to include inadvertent mistakes too; and
3) The current drafting also allows for the inaction of the person to merely ‘contribute to’ a partial concealment – so failure(s) on the part of the LPA would not appear to preclude the obtaining of an extension of time limits for enforcement.
There is plenty to thrash out about these proposals and I would not be surprised if they were heavily modified from their current form as they seem massively wide-ranging to me as they are. As you note, there seems to be plenty of mileage in this for both planners and barristers alike!
What an interesting piece! This is isn’t even my area of specialism but I still read right to the end. Look forward to future posts.
We are all awaiting the Supreme Court’s decison in Welwyn-Hatfield with interest, and the case of Fidler is also pending before the Court of Appeal.
As to whether the Fraud Act provides a practical answer, I have my doubts.
The government clearly thinks the way forward is by amending section 171B of the 1990 Act – hence Clause 104 of the Localism Bill, but this is a huge sledgehammer to crack a very small nut, and is likely to have wide-ranging and unintended consequences. For the views of the Law Society on this clause (as well as my own) see my planning law blog (“Martin Goodall’s Planning Law Blog” – you will find it among the links on this site).
Thanks Martin – I agree, sledgehammers and walnuts (or hard cases make bad laws?). The Fraud Act is just one example, my wider point being that there is a much wider world of legislation available out there to planning enforcement officers that can help them achieve results, particularly in conjunction with ancillary orders such as confisction orders or the like.
As you’ll see from my response to Helpfulplanner (above) I also agree with yours and the Law Society’s views on the likely wide-ranging and unintended consequences. Blog post on this coming soon here too!
To find Martin’s blog click on “Links” at the top of the page – you’ll find a link from there.
This is a very interesting idea. It should certainly help the frustration felt by Mummery LJ. However I did think that his concern failed to recognise that planning permission and the planning status of land “runs with the land”. It’s not realistic to make the validity of a permission turn on honesty or otherwise in the application process. One has to be able to rely on the words of the permission. But this fraud suggestion would deal with Mummery LJ’s POV. See also posts on our blog at http://www.plan-it-law.com .
Thanks David – I think you’re right (and as Pill LJ noted in the course of giving judgment) planning is essentially an administrative process, not involving determination of moralities. I’ve added a permanent link to Mills & Reeve’s blog under my “Links”tab above.
I would suggest that a better resourced and managed planning enforcement regime may negate CLUED’s altogether. If it was the case that the construction of the ‘hay barn’ was monitored and, upon completion, inspected by the subject authority, Mr Beesely may not have been in a position to apply for a CLUED. I recognise that it would be impossible monitor developments in perpetuity but in the case of Mr Beesely – ‘4 years and 6 days’ illustrates the respective authority’s approach to planning enforcement.
Sulla – I don’t agree. CLEUDs are not just about getting the ‘thumbs up’ for unauthorised development that someone has managed to sneak past the LPA – and don’t forget the question of expediency. Even the best-resourced and expertly managed enforcement team would encounter unauthorised development that it would not be expedient to enforce against. A CLEUD is useful in those circumstances to regularise a planning position without recourse to a full-blown planning application.
What about the Big Society? Could it help here rather than enacting clause 104? Have there not been serious proposals from Government in the last few days that local people could run for example bus services? Planning enforcement could also be driven by local people. If there’s a problem they would bring it to the attention of the planning authority. That after all is how crime enforcement works. Someone alerts the policeman that they are the victim of a crime.
But of course, at the moment, planning enforcement is generally a response to a complaint from a neighbour or local resident. In the Beesley case, were there not neighbours and local people who knew what was going on? But they can’t have complained, they did not alert the “policeman”. Which suggests to me that the breach wasn’t such a problem. Unless the Beesleys were either hermits or had ways of stopping their neighbours from talking, which sounds unlikely.
David, I think crime enforcement can be split into reactive policing (which you describe above) and proactive policing, which requires the careful allocation of policing resources based on intelligence and analysis of crime information. I think perhaps planning enforcement is almost entirely (if not entirely) reactive – almost certainly due to resourcing issues.
I don’t know about how many neighbours/locals were around the area (there’s nothing in the case judgments that indicate either way) but perhaps the major enforcement issue with the Welwyn Hatfield case was that externally there was nothing to give away the game that it was anything other than a hay barn, coupled with the described actions of Mr Beesley in the judgments of the High Court and the Court of Appeal that he and his family were careful not to take any step that might alert the LPA to their presence? There’s no suggestion for example of any domestic paraphernalia around the curtilage of the barn; they deliberately did not enter themselves on the electoral roll etc.
Trying not to get too Rumsfeldian about it, you can’t enforce against ‘unknown unknowns’ and if your officers never come to know about it then that doesn’t mean it’s not harmful. Leaving things to locals seems to me to be a bit ‘mob rule’-ish? Just because one set of neighbours thinks you’re ‘the right sort of chap’ and that the Council ‘shouldn’t poke its nose in’ doesn’t mean that their judgement on the harm possibly being caused by the unauthorised development is correct. Otherwise why bother having enforcement officers (or planners for that matter) at all, if we’re just going to allow the decisions of individuals or groups of neighbours to decide when development is harmful or not?
Point taken Scott – I accept that unauthorised development will be missed by LPAs (Mr Beesely made himself known to the relevant LPA) and that some of those developments will require regularisation. However, whether it is expedient to take enforcement action or not does not mean that development does not require planning permission in the first instance – 1990 Act s57(1).
If the authority in question had inspected Mr Beesely’s ‘hay barn’ 12/18 months after being notified in writing that the development had commenced (as this surely would have been at least one of the conditions the relevant permission was subject to) then Mr Beesely would have had three options:
(1) to seek regularisation by way of a planning application
(2) to remove the dwelling and make good the land, or
(3) to comply with the terms of the relevant planning permission.
I don’t think that regularising development for the sake of regularisation is useful or indeed fair. Or am I missing something here?
Sulla, it’s not about regularising a planning situation for the sake of it is the point; if/when land comes to be sold then any conveyancer worth their salt is going to want to be satisfied as to the planning position as regards any development or uses on the land in question. A CLEUD is therefore a useful procedure to regularise such matters in anticipation of a sale (for example) rather than simple regularisation for the sake of it.
Moreover I think there does need to be a balance struck between allowing an LPA to strike at unauthorised and harmful development and giving certainty to landowners, not all of whom will be contravening planning controls in a deliberate, dishonest or deceptive way (shocking assertion I know, but sometimes it happens!). These people need some kind of mechanism to give them certainty and to allow land to be sold and bought securely, having already given the LPA sufficient opportunity to bite the unauthorised development.
Perhaps the solution (or a solution, anyway) might be to reconsider the length of time before development becomes immune; the amount of resources given to enforcement departments or even something similar to the current clause 104 of the Localism Bill (but reworked, since the current proposals will cause no end of problems in my opinion! – see my other post “To Infinity And Beyond!”).
Sulla, forgive me if I’m wrong, but there appears to be some criticism of the LPA’s enforcement team in your posts. I admit to not knowing the circumstances surrounding the monitoring of the development in question, but have experience of working in an enforcement team that sought to be proactive as opposed to reactive. However, resource implications made this extremely difficult to achieve (I’m sure I don’t need to go into the details).
Practically, whilst LPAs may impose a condition requiring the developer to notify the authority of the commencement date, how often is this complied with? I’m sure Mr Beesely would have ploughed on regardless in any event. Ok, this would have constituted a breach of condition, but when you are playing with such high stakes I’m sure the threat of the LPA picking this up was a minor consideration.
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