Lawful use certificate – Residential use – Time limits for enforcement – Second respondent obtaining planning permission to build hay barn for agricultural storage – Building fitted out and occupied as dwelling – Section 171B(2) of Town and Country Planning Act 1990 – Whether residential use immune from enforcement action by appellant council after four years as change of use to single dwelling-house within section 171B(2) – Whether entitlement to lawful use certificate arising – Appeal allowed
In December 2001, the appellant council granted planning permission to the second respondent to erect a hay barn to be used for agricultural storage. Although the exterior of the building resembled a barn, the second respondent had fitted it out internally as a three-bedroom dwelling, with all utilities, and had always intended to use it as such. He moved in August 2002 and lived there continuously, without the appellants’ knowledge.
In August 2006, he applied to the appellants for a certificate of lawfulness of existing use, on the ground that the four-year time limit for taking enforcement action against a change of use to a single dwelling-house, under section 171B(2) of the Town and Country Planning Act 1990, had expired. The appellants refused to grant the certificate, which decision was reversed when the second respondent appealed to the first respondent. It was reinstated by the High Court (see [2009] EWHC 966 (Admin); [2010] JPL 352), and was once again reversed by the Court of Appeal.
The latter held that the second respondent was entitled to a lawful use certificate on the ground that the use of the building as a dwelling represented a change of use, within section 171B(2), from either: (i) the agricultural storage use permitted under the relevant planning permission, even though there had been no actual prior agricultural storage use; or (ii) a period of “no use” between the completion of the building and the date on which the second respondent had taken up residence. It further considered that the four-year time limit under section 171B(1) applied to enforcement against the construction of the building, which had been built in breach of planning control because its physical features were those of a dwelling rather than those of a hay barn, for which planning permission was granted: see [2010] EWCA Civ 26; [2010] 1 EGLR 98; [2010] 13 EG 84.
The appellants appealed. They disputed the Court of Appeal’s interpretation of section 171B(2) and further argued that even if the second respondent’s development fell within it, he should be barred from relying on that provision as a matter of public policy because he had deliberately deceived the appellants in his planning application.
Held: The appeal was allowed.
Apart from its appearance, the second respondent’s building had been designed and built as a house. Even if, which was doubtful, it were possible to regard the first material operations in its construction as referable to the permitted hay barn, that planning permission had not been implemented in any further or substantial respect such that the building fell within the provisions of section 171B(1) dealing with unauthorised building operations. The building, as constructed and completed, was not the permitted barn. Thus, it could not be regarded as having any permitted use. Accordingly, there had been no “change of use” from a permitted use to use as a single dwelling-house so as to fall within section 171B(2).
Moreover, the situation could not be analysed as involving a change of use from a period of “no use” prior to the second respondent’s residency. The question of whether a dwelling-house could be described as having no use, when it had recently been completed and its owner had intended to occupy it shortly thereafter, could not sensibly be answered on a day-to-day basis but called from a broader and longer-term view: Impey v Secretary of State for the Environment (1984) 47 P&CR 157 applied; Backer v Secretary of State for the Environment (1982) 262 EG 549 not followed. The need for actual use, with its connotations of daily domestic activities should not be over-emphasised; instead, the matter should be looked at in the round, asking what use the building had. It was artificial to say that a building had or was of no use or that its use was other than that of a dwelling-house when its owner had built it for domestic purposes and would move in shortly after completion. Accordingly, the commencement of residential use in such circumstances did not involve a change of use to that of a dwelling-house and section 171B(2) did not apply to it. That analysis did not produce anomalous results. Although it meant that the four-year enforcement period in section 171B(1) would apply to the unauthorised building operations while the 10-year period in section 171B(3) would apply to the residential use of the resulting building, that was consistent with a proper understanding of the scheme of section 171B. Protection from enforcement in respect of a building and its use were potentially different matters. In respect of use, section 171B(2) applied a four-year period only where this involved a change of use to a dwelling-house; the focus on the concept of “change of use” rather than merely “use” had been deliberate. Any resulting unfairness might, in an appropriate case, be covered by more general public law controls on administrative action by way of planning enforcement.
Per curiam: The principle that a person should not be permitted to profit from his own wrong was one of public policy, and the better view was that it was not confined to cases involving a crime. Whether conduct would disentitle a person from relying on an apparently unqualified statutory provision had to be considered in context, with regard to any nexus between the conduct and the statutory provision. Even if section 171B(2) had otherwise applied, its language could not have been intended to cover the exceptional facts of the instant case, which involved a positive deception, namely the making of fraudulent planning applications, that had been designed to avoid enforcement action within any relevant four-year period and had succeeded in doing so. Accordingly, the better view was that it would not have barred the appellant from taking enforcement action on the facts of the instant case.
James Findlay QC and Wayne Beglan (instructed by the legal department of Welwyn Hatfield Borough Council) appeared for the appellants; James Maurici QC and Sarah-Jane Davies (instructed by the Treasury Solicitor) appeared for the first respondent; Alexander Booth (instructed by Sherrards Solicitors LLP, of St Albans) appeared for the second respondent.
Sally Dobson, barrister
