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Supreme Court backs council in dispute over house disguised as a barn

Welwyn Hatfield Borough Council has won its appeal over a house disguised as a hay barn, with the Supreme Court ruling that the man who built it could not rely on relevant parts of the Town and Country Planning Act 1990 to obtain immunity from enforcement.

In Secretary of State for Communities and Local Government and another v Welwyn Hatfield Borough Council [2011] UKSC 15, Mr Beesley applied for and obtained planning permission in 2001 for the construction of a hay barn on land he owned in the Green Belt.

A year later he constructed a building that externally appeared to be a barn, but internally was a house with a garage, living room, study, bedrooms and so on. In August 2002 he moved in with his wife and lived there for four years. The council was unaware that the building was being used as a house.

In August 2006, Mr Beesley applied for a certificate of lawfulness for use of the building as a dwelling house. He argued that the four-year time limit for taking enforcement action under s. 171B(2) of the 1990 Act applied and had elapsed.

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The relevant wording in the section is that “where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house, no enforcement action may be taken after the end of four years beginning with the date of the breach”.

Mr Beesley was granted the certificate, a decision that was upheld by the Court of Appeal which decided there was a change of use within s. 171B(2). Welwyn Hatfield BC appealed.

The Supreme Court unanimously upheld the council’s appeal. Giving the lead judgment, Lord Mance said the building constructed was not the barn but a house. As a result there was no change of use within s. 171B(2) from the use permitted by the planning permission granted in 2001.

The judge said it was unnecessary to decide whether change of use under the section could consist in a simple departure from permitted use, without any actual prior use. However, he added: “I doubt this, since the word ‘use’, in each place where it appears in that subsection is on its face used in a real or material sense, rather than in the legal sense of ‘permitted use’.”

Lord Mance also rejected the suggestion that there was a relevant change of use – from no use to use as a dwelling house – between completion of the building in July 2002 and its residential occupation in August 2002.

He said the question in this case was whether it was right to describe the house as having or being of no use as a dwelling house, when it had just been completed and its owner intended to occupy it within days. “This is not a question which can be sensibly answered on a day to day basis,” he said. “It calls for a broader and longer term view.”

The judge added: “I consider it artificial to say that a building has or is of no use at all, or that its use is as anything other than a dwelling house, when its owner has just built it to live in and is about to move in within a few days’ time (having, one might speculate, probably also spent a good deal of that time planning the move).”

Lord Mance went on to conclude – even though his previous comments meant the council had already effectively won its appeal – that Mr Beesley’s dishonest conduct meant he could not rely on s. 171B(2).

The judge said Mr Beesley had intended to deceive Welwyn Hatfield BC “from the outset” and his behaviour, “although not identifiably criminal”, consisted of positive deception in matters integral to the planning process. The principle that unless the contrary intention appears, statutes should be construed to the effect that no should be allowed to profit from his own wrong was not just relevant in cases where there had been commission of a crime.

“Whether conduct will on public policy grounds disentitle a person from relying upon an apparently unqualified statutory provision must be considered in context and with regard to any nexus existing between the conduct and the statutory provision,” Lord Mance added.

“Here, the four-year statutory periods must have been conceived as periods during which a planning authority would normally be expected to discover an unlawful building operation or use and after which the general interest in proper planning control should yield and the status quo prevail. Positive and deliberately misleading false statements by an owner successfully preventing discovery take the case outside that rationale.”

The judge went on: “Mr Beesley would be profiting directly from this deception if the passing of the normal four-year period for enforcement which he brought about by the deception were to entitle him to resist enforcement. The apparently unqualified statutory language cannot in my opinion contemplate or extend to such a case.”

In a concurring judgment, Lord Brown said a conclusion that the Court had no option but to permit Mr Beesley to profit from his dishonest scheme would be damaging to the public’s confidence in planning law.

He added: “On any possible view the whole scheme was in the highest degree dishonest and any law-abiding citizen would be not merely shocked by it but astonished to suppose that, once discovered, instead of being enforced against, it would be crowned with success, with Mr Beesley entitled to a certificate of lawful use to prove it.”

Philip Hoult

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