Deliberate Concealment and Intentional Unauthorised Development

1st March, 2018 by Acorus in General

In cases where development has taken place without planning permission it can be possible to obtain a Certificate of Lawful Existing Use or Development (CLEUD) in effect providing immunity from enforcement action or apply for planning permission retrospectively.

However, landowners must be aware of two provisions in planning that being Deliberate Concealment and Intentional Unauthorised Development.

Deliberate Concealment arose from the Secretary of State for Communities and Local Government versus Welwyn Hatfield Borough Council case in 2011.

There are four key elements to what is Deliberate Concealment.

There must be positive deception, it was intended, it did undermine the planning process and the landowner would profit directly from the deception.

Landowners therefore contemplating submitting a CLEUD need to be aware that if deliberate concealment is proven they may not succeed with an application.

The Local Planning Authority (LPA) have two options in such cases either to apply for a Planning Enforcement Order through the Courts to remove the rights or it is possible for a LPA to defend the case purely on the legal precedents.

Intentional Unauthorised Development is a more recent provision introduced in 2015. It resulted from the Government being concerned regarding development taking place in advance of obtaining planning permission, particularly in the Green Belt. A statement in 2015 effectively made Intentional Unauthorised Development a material planning consideration.

This means when looking at retrospective applications for new developments the decision maker can put weight on the fact that development took place intentionally in advance. The decision maker has to decide the nature of intention.

In summary, when landowners are trying to rectify a lack of planning permission they need to be carefulhow cases are presented.

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