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.