Facebook Evidence and Immunity from Planning Enforcement

A recent planning inspector’s decision involving a Facebook post highlights the wide range of dating evidence that can be relied on to prove that unauthorised development is immune from planning enforcement action.

Operational development in breach of planning control will be immune from enforcement action and therefore lawful if the local planning authority (“LPA”) fail to take enforcement action within 4 years of the date that the unauthorised development was substantially completed.

Immunity can be used as a ground of appeal against an enforcement notice and as the basis for an application for a lawful development certificate.

In both cases the appellant must prove on the balance of probabilities that the breach of planning control is immune, and they will need to rely on dating evidence to prove the date by which the development was substantially completed.

Appeal decision APP/L3815/C/18/3218436 demonstrates the variety of sources that might provide the appellant with that vital dating evidence which can be presented to a planning inspector or LPA.

In this case, the appellants had constructed a slurry lagoon surrounded by an earth bund and fencing without obtaining planning permission.

In an appeal against an enforcement notice, the appellants argued that the development had been substantially completed by 1 August 2014 and had therefore obtained immunity by the time the LPA issued the notice 4 years later on 1 August 2018.

They relied on evidence of a photograph that had been posted on Facebook. The photograph showed the slurry lagoon with clearly defined edges and the earth bund. This led the inspector to conclude that the development had been substantially completed by the date that the photograph was taken.

Although the photograph was undated, the Facebook post containing the photograph was published on 6 August 2014.

The inspector concluded that the photograph could not have been taken any later than 6 August 2014, but could have been taken some time earlier.

They say that a picture paints a thousand words. In this case the inspector noted that even if the photograph had been taken on 6 August 2014, 5 days after the key date, the image showed that the edges of the slurry lagoon were well vegetated.

This indicated that no works had recently taken place and that the construction works must have been substantially completed well before 1 August 2014, and the inspector therefore upheld this part of the appeal.

By contrast, the fencing around the slurry lagoon was not shown in the photograph, leading the inspector to conclude that the fencing was not substantially completed by this date and the inspector therefore rejected that element of the appeal.

This case highlights the breadth of dating evidence that can be submitted before planning inspectors and LPAs to prove the date by which developments were substantially completed.

Even if the precise date that a photograph was taken cannot be proved to be earlier than the key date for proving immunity, if it can be shown to have been taken in close proximity to that date and the content of the photograph corroborates the assertion that the development had already been substantially completed, then this could be sufficient proof.

In addition to social media posts, other types of modern electronic dating evidence can include:

• Aerial photographs (e.g. from Google Earth, Zoom Earth) – provide useful evidence as to whether a building had been constructed by the date the photograph was taken. The appellants included these within their evidence and we have also had experience of relying on aerial photography in support of applications for lawful development certificates.
• Google Street View photographs – it has now been over 10 years since this service was launched in the UK, and with updated images regularly being taken and uploaded together with previous photographs, this is also becoming an increasingly useful tool in providing a visual history of a site and in proving that a development has become immune to enforcement;
• Digital photographs and videos – with the exponential growth in digital photography following the advent and rise of smartphones and digital cameras, images and selfies may inadvertently capture the development in question in the background. With high-resolution videos, one can also easily extract still Furthermore, unlike photographs from conventional film cameras, the date they were taken will usually be recorded on the image file.

As this case demonstrates, planning inspectors and LPAs are willing to accept a wide range of verifiable dating evidence and any such evidence will significantly bolster an appellant’s case – it may simply involve a little left-field thinking about what evidence an appellant may have in their possession.