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Deceit

This page deals with two cases that superficially seem to raise the same issues. They both involve concealment of the use of a building for dwelling purposes. However, the outcome in each case was different - as the legal issue in each was different.


True nature of building hidden for four years

House looked like a barn

Welwyn Hatfield Council v Secretary of State for Communities and Local Government
[2010] EWCA Civ 26

Summary

A building owner was successful in obtaining a certificate of lawfulness under s171B of the Town and Country Planning Act 1990 even though he had deliberately deceived the local planning authority in relation to his application for planning permission.

Facts

Mr Beesley, the building owner, had been granted planning permission for a barn. He had constructed a building that looked like a barn from the outside, but had fitted out the inside as a residential dwelling and occupied it as such. (This had been his intention throughout.) As he had used the building as a dwelling for four years he was granted, on appeal to the Secretary of State, a certificate of lawfulness of existing use on the basis that he had obtained immunity from enforcement.

The council appealed to the High Court contending that as Mr Beesley had never used the building as a barn, but always as a dwelling, there had been no actual “change of use” required by s171B(2). Therefore, the four-year time limit under that section did not apply. The appeal was allowed. The Secretary of State and Mr Beesley then appealed to the Court of Appeal contending that the section did apply as the building had been used in breach of planning control as a dwelling, and therefore a change of use in breach of planning had taken place.

Decision

Allowing the appeal, the Court of Appeal held that, as the building had the features of a dwelling house when looked at as a whole, what had been built was a dwelling house and not a barn. As it was built in breach of planning control, the construction of the building fell within s171B(1) and the four-year time limit under that subsection applied. Richards LJ at paras 24 and 25:
    "Looked at as a whole, the physical and design features of what was built by Mr Beesley were those of a dwelling house, not a hay barn. Its character and purpose, and its proper classification for planning purposes, were those of a dwelling house. Yet the planning permission was for the erection of a hay barn. If one asks whether the building operation carried out was, both externally and internally, fully in accordance with the planning permission, the answer is clearly "no": What was created internally was not on any sensible view a hay barn. The internal fitting out of the building with the rooms and features of a dwelling house meant that it was built in breach of planning control.

    It follows that the construction of the building fell within section 171B(1) and that the four-year time limit under that subsection applied. Since, on the inspector's findings, the building had been completed more than four years before Mr Beesley applied for a certificate, it was too late for the council to take enforcement action against the operational development constituted by the construction of the building."
Comment

This case reinforces the policy considerations stated in Arun DC v First Secretary of State [2006] EWCA Civ 1172 where it was held that Parliament intended to provide protection to homes. That was the reason for the shorter period before obtaining immunity from enforcement of four years as opposed to 10 years for other material changes of use. The case is also of interest in that it makes clear that the intentions or dishonesty of the person making the application for the certificate are not relevant. The fact that the breach of planning control had been deliberately embarked upon from the time of making the planning application could not impact on the purely objective and factual question of whether or not the certificate should be granted. Richards LJ at para 18:
    "The court should not be tempted to adopt a strained construction of the section in reaction to the deliberate deceit practised by Mr Beesley or out of concern for the difficulties that such conduct creates for local planning authorities in enforcing planning control. The outcome should be the same as if, for example, there had been a genuine change of mind in the course of construction of a building for which planning permission had been obtained in good faith. The question is whether the situation, viewed objectively, is one for which the statute has provided a four year time limit or a ten year time limit. If it is considered that there should be a different outcome in a case of dishonesty or deliberate concealment, it is for Parliament to amend the legislation accordingly."
It is also worth mentioning that the Court of Appeal concluded in addition that immunity had been acquired separately under s171B(2) of the Act. The building was permitted to be used as a barn only. Its use as a dwelling was therefore to be regarded, for the purposes of s171B(2) as a change of use in breach of planning control.


When is building "substantially complete"

Using straw bales to hide the development

Fidler v Secretary of State for Communities and Local Government
[2010] EWHC 143 (Admin)

Summary

This case seems superficially to raise the same issues as Welwyn Hatfield. It also involved the concealment of the use of a building for dwelling purposes. However, the outcome was different – as the legal issue in the case was different.

Facts

Mr Fidler built a dwelling house without planning permission, and concealed it under straw bales and tarpaulins during its construction. Following completion of the construction works in 2002, he and his family occupied it leaving the straw bales and tarpaulin in place. In July 2006, he removed the straw bales and tarpaulins. In response to enforcement notices issued in February 2007, he contended that the building had been substantially completed in June 2002 and that the four-year period referred to in section 171B(1) had accordingly expired.

On an enforcement notice appeal, the inspector concluded that the removal of the straw bales and tarpaulin was an integral part of the construction process and formed part of the totality of the building operations in question. Therefore, he dismissed Mr Fidler's appeal, holding that the building had not been substantially completed until these items had been removed. Mr Fidler appealed.

Decision

The High Court upheld the inspector’s decision. The inspector was fully entitled to find that there was such a close and intimate connection between the erection and removal of the straw bales and the construction of the dwelling as to lead to the conclusion that the former was a necessary part of the overall building operations relating to the latter.

The inspector had made it clear that the erection and removal of the straw bales was an essential part of building operations that were intended to deceive the local planning authority and to achieve by deception lawful status for a dwelling built in breach of planning control, Therefore, applying the decision in Sage v Secretary of State for the Environment, Transport and the Regions [2003] UKHL 22 it was clear that the four years began to run from the time the straw bales were removed in July 2006. There was therefore no immunity under the four-year rule.

Comment

As stated above, there is a superficial familiarity between these two cases. The difference is that in the former there was no question that the barn had not been substantially completed and used as a dwelling house for over four years. In this case, Mr Fidler's means of deception was his undoing: The straw bales he had used to conceal the development were held as a matter of fact to constitute part of the building operations of the building. Therefore, the inspector concluded, that the building had not been substantially completed until the bales were removed. As the development only acquires immunity after the expiry of four years from its substantial completion Mr Fidler was not able to avail himself of the statutory regime to protect the development from enforcement action.

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