Secretary of State for Communities and Local Government and another v Welwyn Hatfield Council

JurisdictionEngland & Wales
JudgeLORD BROWN,Lord Phillips,Lord Clarke,LORD MANCE,Lady Hale,Lord Walker,LORD RODGER
Judgment Date06 April 2011
Neutral Citation[2011] UKSC 15
Date06 April 2011
CourtSupreme Court
Secretary of State for Communities and Local Government

and another

(Respondents)
and
Welwyn Hatfield Borough Council
(Appellant)

[2011] UKSC 15

before

Lord Phillips, President

Lord Rodger

Lord Walker

Lady Hale

Lord Brown

Lord Mance

Lord Clarke

THE SUPREME COURT

Hilary Term

On appeal from: [2010] EWCA Civ 26

Appellant

James Findlay QC

Wayne Beglan

(Instructed by Sharpe Pritchard)

1st Respondent (Secretary of State for Communities and Local Government)

James Maurici QC

Sarah-Jane Davies

(Instructed by Treasury Solicitors)

2nd Respondent (Alan Beesley)

Alexander Booth

(Instructed by Sherrards)

LORD MANCE (with whom Lord Phillips, Lord Walker, Lady Hale and Lord Clarke agree)

Introduction

1

In July 1999 Mr Beesley, the second respondent, bought 22 acres of open land in the Green Belt on the outskirts of Northaw, Potters Bar. In October 1999 he applied for and in March 2000 obtained planning permission to construct a hay barn for grazing and haymaking. Upon a further application made in January 2001, this was in October 2001 revoked and in December 2001 replaced by a second planning permission for the same barn, re-sited differently. Each planning permission was subject to the 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".

2

Between January and July 2002, with the assistance of his builder father-in-law, Mr Beesley constructed a building which was to all external appearances the permitted barn, with walls in profiled metal sheeting, a roller-shutter door, two smaller doors and eight roof lights. Internally it was a dwelling house with full facilities, including garage, entrance hall, study, lounge, living room, toilet, storeroom, gym and three bedrooms, two of them with en suite bathrooms, and connected to mains electricity, water and drainage and a telephone line. On 9 August 2002 Mr Beesley and his wife moved in and there they lived continuously for four years. Welwyn Hatfield Borough Council, the appellant, in whose area the property lies, remained unaware throughout that the building was or was being used as a dwelling house.

3

Mr Beesley was, on the other hand, well aware of the scheme of the Town and Country Planning Act 1990, section 171B of which provides:

"(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."

Section 171A defines "a breach of planning control" as (a) carrying out development without the required planning permission, or (b) failing to comply with any condition or limitation subject to which planning permission is granted.

4

The significance of the expiry of the periods mentioned in section 171B appears from section 191(3), which provides that for the purposes of the Act:

"any matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful at any time if—

(a) the time for taking enforcement action in respect of the failure has then expired; and

(b) it does not constitute a contravention of any of the requirements of any enforcement notice or breach of condition notice then in force".

Section 191(1) provides:

"If any person wishes to ascertain whether—

(a) any existing use of buildings or other land is lawful;

(b) any operations which have been carried out in, on, over or under land are lawful; or

(c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful,

he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.

(2) For the purposes of this Act uses and operations are lawful at any time if—

(a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and

(b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force."

5

On 15 August 2006, Mr Beesley submitted an application under section 191(1)(a) for a certificate of lawfulness for use of the building as a dwelling house, attaching three statutory declarations and thirteen items of documentation to establish his completion of four years of continuous occupation. The application led to a dispute notable for the turns taken by each side's case.

6

The council denied that the building constructed was a dwelling house, maintained that a ten year period for enforcement applied under section 171B(3) and on 30 August 2007 refused a certificate. Mr Beesley appealed and the matter came before Mr K L Williams, a planning inspector appointed by the second respondent, the Secretary of State. The council, in addition to relying on section 171B(3), challenged Mr Beesley's credibility regarding the length and continuity of his occupation. In so doing, it relied on the fact that, on his own account, he had from the outset, and specifically when he applied for planning permission for a barn, deliberately deceived the council. The inspector noted this, but found nevertheless that use as a dwelling house probably did commence more than four years before the date of the application for a certificate. He observed that, since the intention from the outset was to establish immunity from enforcement under section 171, Mr Beesley would have been unlikely to apply for a certificate until four years had expired. He held that, however the building was classified, it had been in "use as a single dwelling house", and he treated this as sufficient to bring section 171B(2) into operation. Under section 195(2) of the Act, he therefore granted a certificate.

7

The council appealed to the High Court, where Collins J on 7 April 2009 over-turned the inspector's decision: [2009] EWHC 966 (Admin). He viewed the building as the permitted barn (paras 34-35), but went on to hold that there had never been any intention to use the building other than as a dwelling house, and that this meant that there had not been a change of use within section 171B(2). On further appeal by the Secretary of State and Mr Beesley, the Court of Appeal (Pill, Mummery and Richards LJJ) on 29 January 2010 reversed Collins J: [2010] EWCA Civ 26; [2010] PTSR 1296. It held section 171B(2) to apply on the basis that use as a dwelling house as from 9 August 2002 was a change of use either from the use permitted by the planning permission or from a period of "no use" which the court identified as occurring between completion of the building and its residential occupation: para 29 per Richards LJ, with whose reasoning the other two members of the court agreed. However, Mummery LJ expressed puzzlement at

"the total absence of argument from the council, or the Secretary of State, about the effect of Mr Beesley's reprehensible conduct in obtaining planning permission by deception and in failing to implement it" (para 43).

He added (para 45) that

"it is very difficult to believe that Parliament could have intended that the certificate procedure in section 191 should be available to someone who has dishonestly undermined the legislation by obtaining a planning permission which would never have been granted if the council had been told the truth".

8

The council now appeals to the Supreme Court. It challenges the Court of Appeal's decision that there was a change of use, but it also seeks to raise a new point, picking up Mummery LJ's remarks in terms of a principle of public policy. Neither Mr Beesley nor the Secretary of State has objected to this new second point being argued. However, both dispute that public policy can have any role in the relevant statutory scheme, and Mr Beesley seeks to adduce fresh evidence which would, if accepted, qualify the inspector's finding that his intention was from the outset to establish immunity from enforcement. This could, he submits, affect the application of any principle of public policy which may be relevant. The fresh evidence would be to the effect that his intention to construct the barn to live in as a dwelling house was only formed in June 2001, and so after he had submitted both the original and the revised planning application, although before the former was revoked and the latter actually obtained.

The first issue – section 171B(2)

9

The first issue depends upon an analysis of the scheme of section 171B. The only directly relevant part is subsection (2), because, for whatever reason, Mr Beesley only applied for (and was only given by the inspector) a certificate of lawfulness of existing use under section 191(1)(a). He has not sought to address the possibility that the operation of constructing the building might itself also (and independently) be regarded as having been in breach of planning control within section 171B(1) and section 191(1)(b). This is perhaps not as surprising as might appear, since the council itself treated the building as a barn when refusing a certificate in August 2007, and argued forcefully before the inspector to this effect with a view...

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