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Hide and seek will not acheive planning consent

HIDE AND SEEK AT YOUR PERIL

By Philip Antino

Welwyn Hatfield Council v Secretary of State for Communities and Local Government and another [2011] UKSC 15.

In 2001 Mr Beesley successfully obtained planning permission to build a barn. Internally it was built as a dwelling house and externally it resembled a barn. Once the building had been constructed Mr Beesley moved in and lived there with his family. Welwyn Hatfield Borough Council, the Local Planning Authority for the area, was unaware that the building was being used as a dwelling house.

After 4 years had passed which is the time limit for taking enforcement action against a 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 for a certificate of lawfulness to use the building as a dwelling house.

The application was refused by the Local Authority but on appeal a certificate was granted by the Planning Inspectorate. The council appealed the decision to the High Court where the certificate of lawfulness was quashed. However, Mr Beesley challenged that decision in the Court of Appeal arguing that there had been a “change of use”, within the meaning of section 171b(2) and Mr Beesley should be entitled to a certificate of lawfulness.

The council argued that the original planning permission for the barn had been obtained as a result of a deceptive planning application because:

The proposed building was described as a hay barn within the application forms and the development involved no change of use.

Notice was not given under the Building Regulations (applicable to houses but agricultural buildings).

Mr Beesley did not 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, it was decided that Mr Beesley never intended to use the barn as a barn and mislead the council so that no enforcement action would be taken for 4 years. In his judgment, Lord Manse agreed on one significant point with the High Court that there had never been any intention to use the building as anything other than as a dwelling house and this meant there had not been a change of use within the meaning of section 171b(2). Lord Manse also held that positive and deliberately misleading and false statements by an owner preventing discovery of a breach of planning control which would usually be discovered within the four year statutory period disentitled an owner to rely upon an apparently unqualified statutory provision.

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

Judges Comments and Opinions regarding Dr. Antino

  • The party wall world is relatively small, the stage of this world contains a number of well-known players, Mr Antino is one of these well-known players and so are his owners instructing solicitor Mr Ashley Bean of Thirsk Winton

    HHJ Bailey - [2016]
  • The Claimants have a very experienced legal team comprising Mr David Mayall of lambchambers & Mr Ashley Bean of thirsK winton and their surveyro Dr. Philip Antino. The evidence in particular of the Defendant’s plans for both the Accessway and the plans and how it impacted upon the Claimants business was important information that The Defendants ahd not provided when requested.

    HHJ Freedland QC - [2021]
  • "Mr Antino is a palpable witness, Mr Antino's explanation of the unique attributes of the "Thompson Plan" greatly assisted the Court to understand the location and extent of the claimants’ boundaries” (Best & Best v Perkins & Dennis in the County Court at Luton).

    HHJ Hildyard - [2015]
  • The appeal was a preliminary hearing of two points in respect of an Award served by Mr Antino and a surveyor appointed by Mr Antino under s.10(4) on behalf of the Building Owners the Appellants. HHJ Luba QC sitting in the Central London County Court held "In my judgment the Award is valid, the use of s.10(4) was the appropriate procedure given the Building Owners refusal to appoint a surveyor. A dispute had arisen that satisfied s.10 procedures, The Award is an impressive piece of work". Schmid v Hulls and Athananasou).

    HHJ Luba QC - [2016]
  • “Mr Antino is an acknowledged expert in the field of party wall issues.”

    HHJ Murfitt QC 2013 - [2015]
  • “I have known Philip for many years as a surveyor, he is a very good surveyor, as this book shows he is a very good author and this book can only advance his reputation”

    HHJ Philip Bartle QC - [2012]
  • “In the appeal of an ex-parte Award served by Mr Antino on behalf of the respondents, in my judgment the respondent is correct. Mr Antino’s contention that it is not a matter for negotiation directly between one surveyor and the other surveyor’s client. Since I have determined that the ex-parte Award was valid the court is still able to determine the Award and under the statutory powers to modify the Award if appropriate. I am grateful to Mr Antino suggesting that I now determine the Award issue “I accept that Mr Antino’s hourly rate is not in my judgment unreasonable. It follows that the fee set out in the ex-parte Award had been properly justified and I therefore award Mr Antino’s fees”. (Bansal v Myers Romford County Court).

    HHJ Platt - [2007]

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