“It is a surprising outcome which decent law-abiding citizens will find incomprehensible; a public authority, deceived into granting planning permission by a dishonest planning application, can be required by law to issue an official certificate to the culprit consolidating the fruits of the fraud”. So commented Mummery LJ in Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2010] EWCA Civ 26; [2010] PLSCS 32.
There, Mr Beesley had obtained planning permission to erect a hay barn, subject to an express condition that the building should be used only for agricultural storage. However, he freely acknowledged that he intended all along to use the building as his private residence. On completion of the construction works, by which time the building had all the external appearance of a barn but had been fitted out internally as a house, Mr Beesley and his wife moved in. Four years later, he was refused a lawful development certificate (LDC) in respect of the existing use of the building by the council, but was granted one by the inspector on a successful appeal.
“It is a surprising outcome which decent law-abiding citizens will find incomprehensible; a public authority, deceived into granting planning permission by a dishonest planning application, can be required by law to issue an official certificate to the culprit consolidating the fruits of the fraud”. So commented Mummery LJ in Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2010] EWCA Civ 26; [2010] PLSCS 32.
There, Mr Beesley had obtained planning permission to erect a hay barn, subject to an express condition that the building should be used only for agricultural storage. However, he freely acknowledged that he intended all along to use the building as his private residence. On completion of the construction works, by which time the building had all the external appearance of a barn but had been fitted out internally as a house, Mr Beesley and his wife moved in. Four years later, he was refused a lawful development certificate (LDC) in respect of the existing use of the building by the council, but was granted one by the inspector on a successful appeal.
The principal issue for the Court of Appeal, arising out of a High Court challenge to the inspector’s decision, was whether it could be validly argued that there had been a change of use of the building to use as a single dwelling-house for the purpose of section 171B(2) of the Town and Country Planning Act 1990. If it could, the four-year time limit for enforcement (as opposed to a 10-year time limit) had expired before the application for the LDC had been made. (The counter-argument, which the first instance judge had accepted, was that no such change of use could take place because the building had no use prior to its occupation for residential use.)
The Court of Appeal held that the building was, by virtue of the planning permission, permitted to be used only as a hay barn. Therefore, its use as a single dwelling-house was properly to be regarded for the purposes of section 171B(2) as constituting a change of use in breach of planning control. Accordingly, Mr Beesley was entitled to an LDC.
Richards LJ pointed out that although dishonesty in an application for an LDC could amount to a criminal offence and result in the LDC being revoked, the false representations made in Mr Beesley’s planning application did not, under the legislation as it stands, disentitle him to an LDC.
John Martin is a freelance writer
