01 February 2015 | Online since 2003



21 July 2014|News,Property News

Landowner seeks landmark ruling in case of concealed development


Ben Garbett

A Winchester based fish farmer is challenging an Inspector’s decision in a case which surrounds the landmark Supreme Court ruling in Welwyn Hatfield.

The council had successfully argued that Mr Jackson’s alleged deceit should deprive him of the right to claim lawful residential use of a barn in which his son was living for more than 4 years.

A full hearing at the High Court is now planned to go ahead after Mr Jackson’s solicitor, Ben Garbett at Keystone Law, won permission from a High Court Judge on 26 June. The decision is expected to lay down clear guidelines for how councils should go about taking enforcement against development which they suspect has been deliberately concealed.

Mr Jackson’s application for a lawful development certificate was refused by Winchester City Council. It then served an enforcement notice, which Mr Jackson subsequently appealed. At no stage did the council seek a Planning Enforcement Order (PEO).

The nub of Mr Jackson’s case is that the public policy principle as laid down by the court in Welwyn Hatfield is rendered obsolete by the change of law wrought by the Localism Act 2011 enabling councils to apply for a PEO from the magistrates’ court.

Mr Jackson’s solicitor, Ben Garbett from Keystone Law, commented on the case: “I am extremely pleased that the High Court has granted Mr Jackson permission to challenge the Inspector’s decision at a full hearing.

"There is little evidence to show that councils are applying for PEO’s in appropriate cases, however the notion that the Welwyn principle can still be relied upon in appeal proceedings may soon be declared unlawful. The only valid method of enforcement against this type of alleged misdemeanour is for councils to make an application to the magistrates’ court. Parliament has now legislated for this but it appears that some planning authorities are taking a massive risk.”

The outcome of this case is of considerable importance to the determination of applications and appeals where the landowner can show that the authority did not follow due process.

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