August 25, 2011

The dwelling house disguised as a barn

Steven Hopkins, Partner & Planning Law solicitor, discusses the interesting case of a dwelling house disguised as a barn in an alleged attempt by the owner to conceal it from the planning authority. 

In 2001 Mr Beesley obtained planning permission for a barn and whilst he constructed a building which externally appeared to be in accordance with the plans, internally it was equipped to be a dwelling house. Once the building had been constructed Mr Beesley moved in and lived there with his wife. Welywn Hatfield Borough Council (“WHBC”), the Local Planning Authority for the area, was unaware that the building was constructed as, and being used as, a dwelling house.

After 4 years, the time limit for taking enforcement action against the change of use of any building to a single dwelling house pursuant to section 171B(2) of the Town and Country Planning Act 1990, Mr Beesley applied to the WHBC for a certificate of lawfulness for the use of the building as a dwelling house.

WHBC refused to grant the certificate but on appeal a notice was granted by the Planning Inspectorate. WHBC appealed the decision to the High Court where the certificate was quashed. However, that decision was challenged in the Court of Appeal which held that there had been a “change of use”, within the meaning of section 171B(2) such that immunity from enforcement action was established.

WHBC challenged the Court of Appeal’s decision in the Supreme Court on two grounds; (1) whether there had been a relevant change of use, and (2) that even if there had been a change of use, the principle of public policy that no one should be allowed to profit from his own wrong precluded Mr Beesley from relying on section 171B(2) and he therefore should not be entitled to a certificate of lawfulness.

WHBC’s case was that the original planning permission for the barn had been obtained as a result of a deceptive planning application as:

  • The proposed building was described as a hay barn and the development involved no change of use.
  • Mr Beesley said sewage disposal was not applicable.
  • Notice was not given under the Building Regulations (applicable to houses but not agricultural buildings).
  • Mr Beesley didn’t register for Council tax or on the electoral register.
  • The Council was given Mr Beesley’s office address for correspondence when all other correspondence was directed to the barn.

Accordingly, Mr Beesley never intended to implement the planning permission that had been granted for a barn, it was intended to mislead the Council so that no enforcement action would be taken for 4 years.

In his leading judgment Lord Manse agreed with the High Court that there had never been any intention to use the building other than as a dwelling house and this meant there had not been a change of use within the meaning of section 171B. Although Lord Manse felt that it was not necessary to address the second argument, he said that whether conduct will, on public policy grounds, disentitle a person from relying upon an apparently unqualified statutory provision must be considered in context. He concluded that positive and deliberately misleading false statements by an owner preventing discovery of a breach of planning control would take the case out of the rationale that a breach of planning control would usually be discovered within the four year statutory period.

The Supreme Court allowed the appeal and the Certificate of lawfulness was quashed.

The Localism Bill was published in late 2010 before the Supreme Court’s decision. It had been said that the new proposed power of Planning Enforcement Orders at section 104 of the Bill was a reaction to this case. The proposed powers will allow Local Planning Authorities to take enforcement action against a breach of planning control even if the time limit for enforcement action has elapsed, if the breach has been concealed.

For further details on the Localism Bill and whether the new power of Planning Enforcement Orders will be changed in light of the decision in this case, book a free place at one of our Planning seminars taking place in Bury St Edmunds and Basildon.

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