The facts of Welwyn Hatfield Council v Secretary of State for Communities and Local Government and another [2011] UKSC 15; [2011] PLSCS 97 are well known, because they are newsworthy if nothing else. There, a Mr Beesley had obtained planning permission for the erection of a hay barn, subject to an express condition that the building should be used only for agricultural storage. However, he 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 the external appearance of a barn but had been fitted out internally as a house, Mr Beesley and his wife moved in and occupied it as a residence.
Four years later, he was refused a lawful development certificate (LDC) in respect of the existing use of the building by the local planning authority. On appeal, he was granted an LDC by the inspector. There was a successful High Court challenge against the inspector’s decision, and the matter then went to the Court of Appeal where the principal issue was whether it could be validly argued that there had been a change of use of the building to use as a single dwellinghouse for the purpose of section 171B(2) of the Town and Country Planning Act 1990. If it could, then the four-year time limit for enforcement (as opposed to a ten-year time limit) had expired before the application for the LDC had been made. The Court of Appeal held that it could, and that Mr Beesley was entitled to an LDC.
The Supreme Court has overruled the decision of the Court of Appeal. The justices held that the building was not the permitted barn; it was a dwellinghouse. Accordingly, it had no permitted use. Therefore, there could not have been a change of use within section 171B(2) from the use permitted by the planning permission. The word “use” in the section is in any event directed to real or material use, not permitted use. It was also artificial to say that a building has no use when its owner has just built it to live in and is about to move in a few days’ time.
The justices also took the view that, as a matter of public policy, Mr Beesley’s dishonest conduct barred him from relying upon section 171B(2).
John Martin is a freelance writer
