Secretary of State for Communities and Local Government and another v Welwyn Hatfield Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COLLINS |
| Judgment Date | 07 April 2009 |
| Neutral Citation | [2009] EWHC 966 (Admin) |
| Date | 07 April 2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/7756/2008 |
[2009] EWHC 966 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Mr Justice Collins
CO/7756/2008
Mr W Beglan (instructed by Legal Department, Welwyn Hatfield Council) appeared on behalf of the Claimant
Miss S J Davies (instructed by Treasury Solicitor) appeared on behalf of the First Defendant
The Interested Party was not represented, did not attend
: This is a claim brought by Welwyn Hatfield Council under Section 288 of the Town and Country Planning Act seeking to overturn a decision of an inspector whereby he decided that a lawful development certificate should be granted to Mr Beesley in respect of the use of a building which had been constructed for the purpose of use as a barn but which, in fact, had been used as a dwelling house. It was said by Mr Beesley that he had lived in this building for more than four years and therefore it could not be the subject of enforcement proceedings and accordingly the use was to be regarded as lawful.
The case turns upon the true construction of the relevant provisions of Section 171B of the Town and Country Planning Act 1990 which provides:
“(1) Where there has been a breach of planning control consisting in the carrying out, without planning permission, building, engineering, mining or other operations in, on, over or under land no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed.
(2) Where there has been a breach of planning control consisting in a change of use of any building for use as a single dwelling house no enforcement action may be taken after the end of the period of four years beginning with the date of the breach.
(3) In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach.”
The circumstances of this case are as follows so far as material. Mr Beesley obtained a planning permission originally in March 2000 to erect what was described as a hay barn. The planning permission granted the development proposed in the application received with sufficient particulars and shown on the plan that accompanied it, subject to the following conditions. There is the usual one of commencement within five years. The second condition is that -
“The building hereby permitted shall be used only for the storage of hay, straw or other agricultural products and shall not be used for any commercial or non-agricultural storage purposes.”
The reason for that was that it was in the Metropolitan Green Belt where only agricultural use would be appropriate.
There was a subsequent permission granted in precisely the same terms on 7 December 2001, the only difference, as I understand it, being that the building was to be re-sited. The planning permission granted described it as “Erection of hay barn: Re-submission to re-site”. The terms were precisely the same.
Mr Beesley accepted - indeed asserted - before the inspector that he deliberately deceived the council when he applied for planning permission for a barn, that he always intended that it should be a dwelling and that he had it constructed between January and July 2002 with the help of his father-in-law (a building contractor). It had a steel frame. Despite the external appearance of the barn, it was fitted out as a normal dwelling house. It has a garage, a store, an entrance hall, a study, a lounge, a living room, kitchen, the usual bathroom and so on, three bedrooms including two with en-suite bathrooms. The natural light is provided by roof lights and ceiling openings. From the exterior it looks like a barn. It was intended so to look because Mr Beesley intended that its use should be concealed from the council and he succeeded in so doing.
Mr Beesley said he moved into the new dwelling house, as he put it, on 9 August 2002. His application for the lawful use certificate was made on, I think, 24 August 2006. That is a week or two after four years had elapsed since he said he had moved in on 9 August 2002.
The application itself was made pursuant to Section 191 of the 1990 Act which provides, by sub-section (1):
“(1) If any person wishes to ascertain whether -
(a) an existing use of buildings or any land is lawful;
(b) any operation which is to be carried out in, on, over or under land is lawful; or
(c) if any other matter constituting failure to comply with any condition or invitation subject to its planning permission has been granted is lawful,
he may make an application for the purpose to the local planning authority specifying the land describing the use of operations or other matter.”
Uses and operations, by sub-section (2), are to be regarded as lawful if inter alia no enforcement action was possible because time for enforcement had expired.
The local authority refused to grant the certificate when the application was initially made to it on the basis that the building was not a dwelling house. It did not work like a dwelling house, and they refused to regard it as such. Mr Beesley had not lived there for the full four year period. Accordingly they took the view that it did not qualify.
In the application form there was included a credit report which was prepared for Mr Beesley and this asserted that his present address was the address in question. He said that he had resided there for four years. His previous address was stated to be 105 Goat Lane, Enfield, Middlesex where he had resided for eight months. Those were the details that were provided to the council.
In the evidence he prepared for the hearing before the inspector he said this:
“I own the land at the application site.”
He produced a plan.
“On 7 December 2001 I obtained planning permission for the erection of a hay barn …..
Between January and July 2002, the building was erected. The building was never intended for any use other than for a dwelling house.”
He described what it looked like. He said:
“The dwelling house has been occupied as our principal residence since the day we moved in on 9 August 2002 up until the present.”
Mr Beesley referred to confirmation from three witnesses: one was an accountant and two others knew what was happening. He dealt with his previous residential history. He said:
“Previous to my occupation of [the relevant premises], I was resident at No 27 Acacia Road, Enfield ….. along with my partner (and now wife), …..
[We] moved into the dwelling house [in question] on 9 August 2002 ….. “
He dealt with the sale of the cottage which had been owned by his wife. He went on:
“During this period, I myself owned the freehold of a property at No 105 Goat Lane, Enfield ….. which I purchased on 31 January 2001.
The property at Goat Lane was let under an AST between 15 February 2001 and 15 December 2001. The tenants vacated the premises at Goat Lane on 15 December 2001, after which the house underwent major refurbishment.
The property at Goat Lane was marketed for sale in early April 2002, a sale was agreed on 22 April 2002, and completed on 9 August 2002. I did not myself ever live at the Goat Lane property, but rather used it as a source of income through letting.”
That, Mr Beglan submits, is inconsistent with the information in the credit check that was sent to the council from which it certainly appeared that he was saying he lived in Goat Lane before moving to the address in question. He fixed the date of 9 August because that was when Goat Lane was sold.
My attention has been drawn to a letter from his then solicitors, dated 12 August 2002, headed “Re 105 Goat Lane, Enfield”. The first paragraph states:
“I write to confirm completion of your sale did eventually take place on Friday and the moneys were transferred in accordance with your instructions.”
That, it is said, is inconsistent with him having ever lived at 105 Goat Lane. He never said in terms that he had lived there although I accept that it certainly looks from the credit report that that was the position.
The point made on the basis of that is that the 9 August date - which was apparently linked to the sale of Goat Lane - cannot be material so far as moving is concerned because he was not living at Goat Lane and did not have to move out of Goat Lane on that date. Attention is drawn to the fact that there is a gap in the telephone records from the middle of August to early September 2002. The suggestion made is that the inspector should not have decided that the use had started on 9 August as opposed to a later date in September which would have meant that there had not been a continuous use over the four-year period.
The inspector dealt with this issue, having considered all the evidence, in his decision. I do not propose to read all the paragraphs in which he covers it. He said in paragraph 25 that Mr Beesley's case was considerably strengthened by three other witnesses, and one - whom the inspector saw no reason to doubt - said that residential use was ongoing late in August 2002. That is prior to September, although no specific date is identified prior to the lodging of the application. He referred to two professional witnesses who had met in the property in September 2002, who support the contention that the building by then was equipped for residential use. He dealt with the point to which I have already referred in relation to ownership. That was a point...
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