Planning permission – Enforcement action – Limitation periods – Permission granted for erection of hay barn for agricultural storage – Building fitted out and used as dwelling – Whether second appellant entitled to lawful use certificate after four years under section 171B(1) and (2) of Town and Country Planning Act 1990 – Appeal allowed
In December 2001, the respondent council granted planning permission to the second appellant to erect a hay barn. The second appellant had deceived the respondents in his planning application and in fact intended to use the building as a dwelling. Although the building looked like a barn from the outside, it was fitted out internally as a three-bedroom dwelling, with all utilities.
In August 2006, the second appellant applied to the respondents for a certificate of lawfulness of existing use, on the ground that the respondents had not taken enforcement action within the four-year time limit laid down by section 171B(2) of the Town and Country Planning Act 1990 in the case of a change of use to a single dwelling-house. He claimed to have moved into the building in August 2002 and lived there continuously thereafter, although he had sought to avoid the residential use from coming to the respondents’ attention.
The respondents refused the certificate on the ground that the building was not a dwelling, since its external appearance lacked the features of such. Accordingly, they considered that the relevant time limit was not the four-year period applying to dwellings but the 10-year period under section 171B(3) of the 1990 Act. An appeal by the second appellant was allowed by the first appellant’s inspector, but that decision was then reversed by the High Court. The judge held that no “change of use” had taken place to which section 171B(2) could apply since the building had never been used other than as a dwelling.
The appellants appealed. In addition to section 171B(2), they relied on the four-year limit under section 171B(1) in respect of the carrying out of building operations without planning permission. They argued that the initial construction of the building had been in breach of planning control as being the construction of a dwelling rather than the hay barn for which permission had been granted and therefore fell within section 171B(1).
Held: The appeal was allowed.
(1) The courts should not adopt a strained construction of the section in reaction to the deliberate deceit of the second appellant or out of concern for the difficulties that such conduct created for local planning authorities in enforcing planning control. The question was whether the situation, viewed objectively, was one for which the statute had provided a four-year limit.
The building was permitted to be used for agricultural storage only. Its use as a single dwelling-house was therefore to be regarded, for the purpose of section 171B(2), as a change of use in breach of planning control. The application of that provision did not depend on establishing actual use for agricultural storage for a period prior to the residential use. Accordingly, the situation fell within section 171B(2) and the four-year time limit applied in respect of the residential use. That result accorded with the statutory policy of affording special protection for people’s homes and avoided making an artificial distinction between a change in the use of the building and that of the land. The second appellant was entitled to the lawful use certificate for which he had applied.
(2) The physical and design features of the second appellant’s building were those of a dwelling-house, not a hay barn. Its character, purpose and proper classification for planning purposes was as a dwelling-house. The building operation carried out by the second appellant was not, internally and externally, fully in accordance with the planning permission for a hay barn since what had been created internally was not, on any sensible view, a hay barn. Consequently, the building had been constructed in breach of planning control and the four-year time limit under section 171B(1) applied. Since the building had been completed more than four years prior to the second appellant’s application for a lawful use certificate, it was too late for the respondents to take enforcement action against the construction of the building: Sage v Secretary of State for the Environment, Transport and the Regions [2003] UKHL 22; [2003] 2 All ER 689 applied.
An issue remained as to whether that would entitle the second appellant to a certificate in respect of the residential use of the building. That would depend on whether an immunity from enforcement under section 171B(1) in respect of its construction likewise conferred immunity on its use for the purpose for which it was designed. It was unnecessary to decide that issue in the instant case in the light of the court’s conclusion on section 171B(2).
Sarah-Jane Davies (instructed by the Treasury Solicitor) appeared for the first appellant; Alexander Booth (instructed by Perrins, of Harpenden) appeared for the second appellant; Wayne Beglan (instructed by the legal department of Welwyn Hatfield Borough Council) appeared for the respondents.
Sally Dobson, barrister