Unlawful residential use of barns – omissions can hurt your chances for planning immunity

It is generally known that a breach of planning control will be immune from enforcement after the relevant period of time. This is namely four years for building operations and residential dwelling house use or 10 years for a breach of condition and any other material changes of use. This is as per section 171B of the Town and Country Planning Act 1990 (“the 1990 Act”).

It is also generally known that positive acts of concealment of the planning breach can defeat a claim of immunity. A widely reported example is the house concealed for four years under straw bales and a tarpaulin. Likewise, the case of the house disguised as an agricultural barn.

However, what may not be well-understood is that deliberate concealment can equally apply to positive omissions of concealment as highlighted in the recent High Court decision of McCaffrey v Dartmoor National Park Authority [2023] 2 WLUK 341.

The McCaffrey case concerned an open-sided agricultural barn originally erected with planning permission in 2007. A complaint of residential use was made in 2012, for which the farmer successfully persuaded the council that the complaint was unfounded. However, in 2021 a further complaint was made. Here, the farmer admitted that the barn was being used as a dwelling and that he had lived there for more than four years.

A council enforcement officer interviewed the farmer and made enquiries about the registration for council tax, domestic waste collection and whether he had applied for a house number. It was found that the farmer had not registered for council tax, he had been using his mother’s address as his postal address and for domestic waste collection, and he had been falsely registering on the electoral register at other properties.

The council applied to the local magistrates’ court for a planning enforcement order (“PEO”) under section 171BA-BC of the 1990 Act. A PEO will extend the ability of the council to enforce a planning breach regardless of whether the immunity period has expired by a year. The magistrates may make a PEO if satisfied that, on the balance of probabilities, there has been an apparent planning breach deliberately concealed and it is fair to make the order in the circumstances.

A PEO was made by the magistrates’ court given the actions of the farmer to conceal the breach described above. The farmer appealed to the High Court. In dismissing the appeal, the judge noted the following:

• A series of acts, omissions, or a combination of both, can amount to deliberate concealment. The court must evaluate all relevant evidence to decide deliberate concealment and the context might be important. The distinction between acts and omissions is not always obvious.
• Deliberate concealment could be done by a person or persons. In the McCaffrey case the appellant’s mother had helped with his knowledge such as using her building as his postal address. Thus, amounting to an act of deliberate concealment. If she had acted alone, it would still be deliberate concealment, but such fact would be relevant to whether it was just to make a PEO.

The McCaffrey case should be a strong example that intentional acts and omissions to deliberately conceal a planning breach and mislead local planning authorities as to the true use of a building extend far beyond physical acts of visual concealments (such as the classic straw bale case). Past false and misleading actions and statements could result in the loss of planning immunity.