Secretary of State for Communities and Local Government and another v Welwyn Hatfield Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Mummery,Lord Justice Pill |
| Judgment Date | 29 January 2010 |
| Neutral Citation | [2010] EWCA Civ 26 |
| Docket Number | Case Nos: C1/2009/1167 and C1/2009/1156 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 January 2010 |
[2010] EWCA Civ 26
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Mr Justice Collins
Before: Lord Justice Pill
Lord Justice Mummery
and
Lord Justice Richards
Case Nos: C1/2009/1167 and C1/2009/1156
Miss Sarah-Jane Davies (instructed by The Treasury Solicitor) for the First Appellant
Mr Alexander Booth (instructed by Perrins) for the Second Appellant
Mr Wayne Beglan (instructed by Welwyn Hatfield Council) for the Respondent
Hearing date: 14 December 2009
Lord Justice Richards:
This case concerns the time limits under section 171B of the Town and Country Planning 1990 (“the 1990 Act”) for enforcement action in respect of breaches of planning control.
In December 2001 Mr Alan Beesley was granted planning permission by Welwyn Hatfield Council for the erection of a hay barn (the development proposed in the planning application and shown on the accompanying plan). The permission was also subject to a condition 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”.
Mr Beesley has admitted that he deliberately deceived the council when he applied for planning permission, in that he filled in the application on the basis that the building was to be a hay barn but he always intended to build and reside in it as a dwelling. The building was constructed between January and July 2002 with a steel frame and the external appearance of a barn, but fitted out internally as a dwelling. The external walls have chipboard with fibreglass insulation and are finished internally with fibreglass. Internal walls are of timber and plasterboard. There are a garage/store, entrance hall, study, lounge, living room, kitchen, WC, storeroom, gym and three bedrooms, including two with en suite bathrooms. The building does not have conventional windows, but rooflights and ceiling openings allow natural light to penetrate into all but two rooms. The property is connected to mains electricity, water and drainage and has heating, a waste disposal unit and a domestic telephone line.
Mr Beesley's case was that he and his wife moved into the property on 9 August 2002 and lived there continuously thereafter. He was evidently careful, however, to avoid the residential use of the building coming to the attention of the council. Building Regulations approval was not sought and there was no record of him on the electoral register.
On 15 August 2006 he applied under section 191 of the 1990 Act for a certificate of lawfulness of existing use, on the basis that the time for enforcement action against use of the building as a dwelling had expired.
The time for enforcement action is governed by sections 171A and 171B of the 1990 Act, which provide in material part as follows:
“171A.(1) For the purposes of this Act –
(a) carrying out development without the required planning permission; or
(b) failing to comply with any condition or limitation subject to which planning permission has been granted,
constitutes a breach of planning control.
171B.(1) Where there has been a breach of planning control consisting in the carrying out without planning permission of 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 the change of use of any building to use as a single dwellinghouse, 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.”
I should also mention section 55(1), which provides that “except where the context otherwise requires, ‘development’ means ‘the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land’”.
The focus of attention in the council's consideration of Mr Beesley's application for a certificate of lawful use was section 171B(2). The council reasoned that only use as a single dwelling house benefited from the four year (as opposed to ten year) time limit for enforcement; the building was not a dwelling house, since its external appearance did not have the features of a dwelling; and the four year limit therefore did not apply. On that basis the council refused a certificate.
Mr Beesley appealed under section 195 of the 1990 Act against the council's refusal. By a decision dated 8 July 2008 an inspector appointed by the Secretary of State allowed the appeal. He said that the breach of planning control concerned the use of the building as a single dwelling house and that it was clear from section 171B(2) that in all such cases the relevant time limit was four years. He stated the issue as being whether there had been a breach of planning control by the use of the building as a single dwelling house and, if so, whether that breach had continued without material interruption throughout a period exceeding four years before the date of the application for a certificate. He considered it unnecessary to determine whether the building was a dwelling house, and he expressly avoided any determination in respect of its status as a dwelling house. He found, however, that it was capable of being used as a dwelling house and that its actual use as a single dwelling house had commenced more than four years before the date of the application and had continued without material interruption to the date of that application. On that basis he granted a certificate that on 15 August 2006 the use of the building as a dwelling house had become lawful by reason of immunity from enforcement action.
The council applied to the High Court under section 288 of the 1990 Act, challenging the inspector's decision. The case was heard by Collins J. The council contended first that the inspector's findings that the building had been used as a single dwelling house for four years were flawed on a variety of grounds. Those arguments were rejected by the judge and are not pursued before us.
But the council also took a new point, namely that there could be no “change of use” to use as a single dwelling house because the building had no use prior to its occupation for residential use, and thus section 171B(2) could not apply. Collins J accepted that contention. He held, in summary, that the construction of the building was lawful and not in breach of planning control; and, since there was never any intention to use it otherwise than as a dwelling house and it had never been used for any purpose other than a dwelling house, there had been no change of use (“it was constructed for that use and has ever since been used in such a way”). Accordingly the four year time limit did not apply.
Whilst the judge arrived at that conclusion as a matter of construction of section 171B and after consideration of the cases cited to him, he had serious concerns about the deceit practised by Mr Beesley and was understandably relieved to arrive at a conclusion that would prevent Mr Beesley from profiting from that deceit. He said this (at para 36):
“I am bound to say that seems to me a conclusion which accords with not only the merits of this case but prevents a particular sort of fraud being perpetrated because otherwise Mr Beesley would have got away with a plot to breach the planning laws and to obtain a dwelling house in breach of the Green Belt policies and a development that he would never have been able to achieve if he had gone about things in an honest fashion.”
He also raised the question whether a criminal offence had been committed in obtaining a planning permission by deception.
Both the Secretary of State and Mr Beesley have appealed against the judge's order, in each case with permission granted by Elias LJ. The arguments presented by Miss Davies for the Secretary of State and by Mr Booth for Mr Beesley are to broadly the same effect, albeit with differences of emphasis, and I can treat them together. There are two main aspects to the case advanced by them:
i) First, it is said that, contrary to the judge's finding, the building was built in breach of planning control. The planning permission was for the erection of a hay barn, whereas what was erected was not a hay barn but a dwelling house: the building was not built in accordance with the planning permission. The case therefore falls squarely within section 171B(1) and the four year time limit for enforcement action applies.
ii) Secondly, and irrespective of whether the construction of the building was in breach of planning control, there was a change of use of the building to use as a single dwelling house: the use permitted by the planning permission was use as a hay barn, but Mr Beesley used the building as a dwelling house. The judge was wrong to find that because the building had never been used in fact for any other purpose than as a dwelling house there had been no change of use. Thus the case falls within section 171B(2) and the four year time limit for enforcement...
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