Welwyn Hatfield Council, R (on the application of) v Secretary of State for Communities & Local Government & Anor [2009] EWHC 966 (Admin)

Case No CO/7756/2008[2009] EWHC 966 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 7 April 2009
Strand
London WC2
B E F O R E:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF WELWYN HATFIELD COUNCILClaimant-v-
Between
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendantALAN BEESLEYInterested Party
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr W Beglan (instructed by Legal Department, Welwyn Hatfield Council) appeared for ClaimantMiss S J Davies (instructed by Treasury Solicitor) appeared for First Defendant for The Interested Party was not represented, did not attend
J U D G M E N T
[1]MR JUSTICE COLLINS: This is a claim brought by Welwyn Hatfield Council under Section 288 of the Town and Country Planning Act seeking to overturn a decision of an inspector whereby he decided that a lawful development certificate should be granted to Mr Beesley in respect of the use of a building which had been constructed for the purpose of use as a barn but which, in fact, had been used as a dwelling house. It was said by Mr Beesley that he had lived in this building for more than four years and therefore it could not be the subject of enforcement proceedings and accordingly the use was to be regarded as lawful.[2]The case turns upon the true construction of the relevant provisions of Section 171B of the Town and Country Planning Act 1990 which provides:
"(1) Where there has been a breach of planning control consisting in the carrying out, without planning permission, building, engineering, mining or other operations in, on, over or under land no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed. (2) Where there has been a breach of planning control consisting in a change of use of any building for use as a single dwelling house no enforcement action may be taken after the end of the period of four years beginning with the date of the breach. (3) In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach."
[3]The circumstances of this case are as follows so far as material. Mr Beesley obtained a planning permission originally in March 2000 to erect what was described as a hay barn. The planning permission granted the development proposed in the application received with sufficient particulars and shown on the plan that accompanied it, subject to the following conditions. There is the usual one of commencement within five years. The second condition is that - "The building hereby permitted shall be used only for the storage of hay, straw or other agricultural products and shall not be used for any commercial or non-agricultural storage purposes." The reason for that was that it was in the Metropolitan Green Belt where only agricultural use would be appropriate.[4]There was a subsequent permission granted in precisely the same terms on 7 December 2001, the only difference, as I understand it, being that the building was to be re-sited. The planning permission granted described it as "Erection of hay barn: Re-submission to re-site". The terms were precisely the same.[5]Mr Beesley accepted - indeed asserted - before the inspector that he deliberately deceived the council when he applied for planning permission for a barn, that he always intended that it should be a dwelling and that he had it constructed between January and July 2002 with the help of his father-in-law (a building contractor). It had a steel frame. Despite the external appearance of the barn, it was fitted out as a normal dwelling house. It has a garage, a store, an entrance hall, a study, a lounge, a living room, kitchen, the usual bathroom and so on, three bedrooms including two with en-suite bathrooms. The natural light is provided by roof lights and ceiling openings. From the exterior it looks like a barn. It was intended so to look because Mr Beesley intended that its use should be concealed from the council and he succeeded in so doing.[6]Mr Beesley said he moved into the new dwelling house, as he put it, on 9 August 2002. His application for the lawful use certificate was made on, I think, 24 August 2006. That is a week or two after four years had elapsed since he said he had moved in on 9 August 2002.[7]The application itself was made pursuant to Section 191 of the 1990 Act which provides, by sub-section (1):
"(1) If any person wishes to ascertain whether - (a) an existing use of buildings or any land is lawful; (b) any operation which is to be carried out in, on, over or under land is lawful; or (c) if any other matter constituting failure to comply with any condition or invitation subject to its planning permission has been granted is lawful, he may make an application for the purpose to the local planning authority specifying the land describing the use of operations or other matter."
Uses and operations, by sub-section (2), are to be regarded as lawful if inter alia no enforcement action was possible because time for enforcement had expired.[8]The local authority refused to grant the certificate when the application was initially made to it on the basis that the building was not a dwelling house. It did not work like a dwelling house, and they refused to regard it as such. Mr Beesley had not lived there for the full four year period. Accordingly they took the view that it did not qualify.[9]In the application form there was included a credit report which was prepared for Mr Beesley and this asserted that his present address was the address in question. He said that he had resided there for four years. His previous address was stated to be 105 Goat Lane, Enfield, Middlesex where he had resided for eight months. Those were the details that were provided to the council.[10]In the evidence he prepared for the hearing before the inspector he said this:
"I own the land at the application site."
He produced a plan. "On 7 December 2001 I obtained planning permission for the erection of a hay barn ..... Between January and July 2002, the building was erected. The building was never intended for any use other than for a dwelling house." He described what it looked like. He said:
"The dwelling house has been occupied as our principal residence since the day we moved in on 9 August 2002 up until the present."
[11]Mr Beesley referred to confirmation from three witnesses: one was an accountant and two others knew what was happening. He dealt with his previous residential history. He said:
"Previous to my occupation of [the relevant premises], I was resident at No 27 Acacia Road, Enfield ..... along with my partner (and now wife), ..... [We] moved into the dwelling house [in question] on 9 August 2002 ..... "
He dealt with the sale of the cottage which had been owned by his wife. He went on:
"During this period, I myself owned the freehold of a property at No 105 Goat Lane, Enfield ..... which I purchased on 31 January 2001. The property at Goat Lane was let under an AST between 15 February 2001 and 15 December 2001. The tenants vacated the premises at Goat Lane on 15 December 2001, after which the house underwent major refurbishment. The property at Goat Lane was marketed for sale in early April 2002, a sale was agreed on 22 April 2002, and completed on 9 August 2002. I did not myself ever live at the Goat Lane property, but rather used it as a source of income through letting."
That, Mr Beglan submits, is inconsistent with the information in the credit check that was sent to the council from which it certainly appeared that he was saying he lived in Goat Lane before moving to the address in question. He fixed the date of 9 August because that was when Goat Lane was sold.[12]My attention has been drawn to a letter from his then solicitors, dated 12 August 2002, headed "Re 105 Goat Lane, Enfield". The first paragraph states:
"I write to confirm completion of your sale did eventually take place on Friday and the moneys were transferred in accordance with your instructions."
That, it is said, is inconsistent with him having ever lived at 105 Goat Lane. He never said in terms that he had lived there although I accept that it certainly looks from the credit report that that was the position.[13]The point made on the basis of that is that the 9 August date - which was apparently linked to the sale of Goat Lane - cannot be material so far as moving is concerned because he was not living at Goat Lane and did not have to move out of Goat Lane on that date. Attention is drawn to the fact that there is a gap in the telephone records from the middle of August to early September 2002. The suggestion made is that the inspector should not have decided that the use had started on 9 August as opposed to a later date in September which would have meant that there had not been a continuous use over the four-year period.[14]The inspector dealt with this issue, having considered all the evidence, in his decision. I do not propose to read all the paragraphs in which he covers it. He said in paragraph 25 that Mr Beesley's case was considerably strengthened by three other witnesses, and one - whom the inspector saw no reason to doubt - said that residential use was ongoing late in August 2002. That is prior to September, although no specific date is identified prior to the lodging of the application. He referred to two professional witnesses who had met in the property in September 2002, who support the contention that the building by then was equipped for residential use. He dealt with the point to which I have already referred in relation to ownership. That was a point which had been relied on by Mr Beglan who appeared for the council at the inquiry.[15]The inspector went on in this way at paragraph 27 of his decision:
"27 It is not necessary for the appellant's evidence to be corroborated by independent evidence to be accepted. If there is no evidence to contradict or make the appellant's evidence less than probable there will be no good reason to dismiss the appeal provided that the appellant's evidence is sufficiently precise and unambiguous to meet the test of probability. Use of the site does not appear to have been investigated by the council during the relevant period and there is very little evidence on its use to counter that on the appellant's side. There was no registration for council tax at the appeal property, the appellant is not on the Register of Electors at the address and did not apply for building regulations approval ..... none of this is surprising given that his intention was one of deliberate deceit from the outset. 28 I have been referred to Thurrock Borough Council v Secretary of State and Holding, 2002, and I have considered the continuity of the use during the relevant period. None of the witnesses, other than the appellant, claim to have been at the site on the date of 9 August 2002, when the appellant says he moved in. However there is no convincing evidence to contradict that date. With regard to continuity of occupation, the appellant's documentary evidence, which I have referred to above, is supplemented by that of Mr Anderson, Mr Hartfield and Mr Samson, regarding visits on site. Taken together, I find that the evidence points to residential occupation on a wide range of dates during the relevant period. There is a lack of convincing contradictory evidence. I therefore consider it probable that use as a single dwelling house did begin prior to the start of the relevant four-year period and continued without material interruption up to the date of the LDC application. The LDC application was made four years and one week after 9 August 2002 and it is known that the intention from the outset was to establish immunity from enforcement. I consider it unlikely that the application would have been made before a full four-year period had elapsed."
[16]It is submitted that there was a failure to apply a proper approach to the standard of proof. It is clear that the inspector did regard the burden as being on Mr Beesley to establish the continual use. In his view the evidence given - despite Mr Beasley's disregard of the truth - in relation to the application for planning permission was not contradicted by any other evidence and he was prepared to accept it. It seems to me that he was entitled to conclude as he did, and there was no error of law - which of course has to be established - in that finding.[17]Accordingly I reject the ground based upon that finding.[18]That brings me to a third ground. It is suggested that the inspector was wrong in asking himself whether the building was capable of use and had been used as a dwelling house for the requisite period, not whether it was a dwelling house. In fact, the inspector said in paragraph 16, having referred to some authorities:
"I conclude that the building is capable of being used as a dwelling house. It is a single, self-contained unit for occupation. It has been adapted for residential use, for example by the construction of the walls with insulation and plastered internal finishes, by internal sub-division to create a domestic layout and by its fitting out for residential use. It is an example of an unlikely or unusual building or structure which people may choose to adapt or use as a dwelling house, as referred to in [the relevant circular]. Looked at externally the building certainly does not have the appearance of a dwelling house. However in determining this appeal I address whether it is capable of use and has been used as a dwelling house for the requisite period, not whether it is a dwelling house. I make no determination in respect of its status as a dwelling house."
[19]The inspector referred earlier to the relevant circular which made the point that experience had suggested that people might adapt or use unlikely or unusual buildings or structures as their home or dwelling house, and concluded:
"If no reasonable person would look at a particular structure used as a dwelling house and identify it as such, it is justifiable to conclude, as a matter of fact, that it is not a dwelling house. In those circumstances while its use as a dwelling house may be immune from enforcement action, it is not a dwelling house as such."
[20]So the distinction is drawn between use and identification. That is a distinction which one can see could properly exist. For example, what is clearly a dwelling house may not be used as such for whatever reason. It may be left empty; it may be used for storage or other purposes entirely. It does not stop it being a dwelling house when looked at objectively. Similarly, people do choose to convert or to live in buildings which do not look like dwelling houses. Miss Davies has given the example of a windmill that is no longer used as such; it may be regarded as desirable.[21]Mr Beglan sought to rely in support of his submission on a decision of Mr Justice McCombe in Brendan v First Secretary of State [2006] EWHC 1711 Admin. That was a curious case on its facts because the individual in question was living in what was described as a small one-room building in woodland in a valley in the Cotswolds. It was used as a store. The appellant in that case apparently did some work to it. There was a small window. There was a sleeping platform at one end and there was heating provided by a wood-burning stove. There had been electricity connected, but there was no running water, bathroom or toilet at the property. It was given the name Hermits Corner. It was clearly something which, on the face of it, neither looked like nor perhaps could be regarded as a dwelling house. But it had clearly been used by Mr Brendan as a dwelling house.[22]The inspector had approached the matter by saying that he considered the main considerations were(1) whether as a matter of fact and degree the building was a dwelling house and, if so,(2) whether it had been used as a dwelling house during the relevant four-year period. The council agreed before Mr Justice McCombe that those were indeed the main considerations. So it was that Mr Justice McCombe approached the case on the basis, first, that it had to be regarded as a dwelling house and, secondly, if it was, whether it had been used as such. It is unfortunate that the circular was not referred to the learned judge because the distinction there drawn between "use" and "being" is one which may be material.[23]It is to be noted that Section 171B talks about use as a single dwelling house, and that is the correct test. It may be that no one would regard it - looking at the building - as an obvious dwelling house, and it may even be that it would be proper to regard it as not a dwelling house at all. But if it was, on the evidence and as a matter of fact, used as such, then it would fall within Section 171B (2). It seems to me, with great respect to Mr Justice McCombe, that he was led astray by the concessions or the agreement of counsel and it is correct to adopt the approach that the inspector adopted, namely the question was whether it was actually being used because it was capable of being so used. And that of course would be a question of fact in any particular case.[24]As it happens, although Mr Beglan has submitted that I should not have regard to it because the relevant permission was not granted to cite it, there was an application for leave to appeal in Brendan. I am not sure why it was not pursued; it appears that it was not. Lord Justice Chadwick indicated that in his view the capability test was the correct one. Quite apart from that, I would have reached the same conclusion myself. Although the decision in Brendan may have been, on its facts, a correct one, it was not in my judgment necessary for the two matters to be established.[25]Finally Mr Beglan has submitted that there was here no change of use. This was always intended to be a dwelling house; it was built as such. And accordingly the use has never changed and therefore Section 171B (2) does not avail Mr Beesley. The question for the purpose of Section 171B (2) is of course whether the use of the building has changed, not whether there has been any change of use in respect of the land. Miss Davies submits that that is a barren point, even assuming it had any validity, because Mr Beesley could rely in such circumstances on Section 171B (1) because he had carried out, without planning permission, building. He had had permission to erect a hay barn. What he had erected was not a hay barn but a dwelling house. Therefore there was a breach of planning control in that building.[26]My attention has been drawn, albeit somewhat indirectly, to the decision of the House of Lords in Sage v Secretary of State [2003] 2 All ER 689, [2003] 1 WLR 983. That was a case where Mr Sage, a farmer, had partially built what was intended to be a dwelling house in breach of planning control but had then apparently decided against it and the building was left partially completed. The council served an enforcement notice in relation requiring the partially built building to be removed. The claimant Mr Sage applied for planning permission ex post facto, but also relied on the four-year limit permitted by Section 171B (1). He contended that the date on which the operations were substantially completed, which is the test to be applied by Section 171B (1), meant the date after which the building work remaining to be done would no longer itself involve a breach of planning control because, taken on its own, it would not require planning permission.[27]The authority's argument was that there should be a holistic construction, the question being had the building been substantially completed and, if so, when?[28]The House of Lords decided that a holistic approach was appropriate; regard should be had to the totality of the operation which the person originally intended to carry out. When an application was made for permission for a single operation it was made in respect of the whole of the building operation for two reasons: first, an application for permission partially to erect a building would usually fail; secondly, the concept of final permission required a fully detailed building of certain character, not an incomplete structure. Accordingly, it was decided that the authority's approach was correct, the inspector was correct, and the notice had not been served after the end of the period of four years because the building had not been substantially completed.[29]The main speech was that of Lord Hobhouse. My particular attention was drawn to what Lord Hobhouse said in paragraph 23, the gist of which I have already stated. The particular sentence is this:
"23 As counsel for Mr Sage accepted, if a building operation is not carried out, both externally and internally, fully in accordance with the permission, the whole operation is unlawful."
That was contrasted with the case where the building was nearly completed but was then altered or improved. Lord Hobhouse said this demonstrated a fallacy in the case because Mr Sage came into the first category, not the second.[30]Lord Scott, who gave the only other reasoned speech, dwelt on the distinction between the dwelling house and the barn because that was an issue. In paragraph 36 he said:
"36 My concern however is with the fairness. I have no doubt at all that the inspector was right in concluding that what had been designed by Mr Sage and what he had been building was a structure intended for use as a dwelling house. The classification of a building for planning purposes and a matter of commonsense is not immutable. It can change if the use to which the building is put changes. It is a common feature in this country for agricultural barns to be converted into dwellings. Once the conversion is complete and use of the property as a dwelling ..... perhaps at an earlier point in time, the classification of the building as a barn ceases to be accurate. Planning permission for any building operations involved in the conversion and the change of use should of course have been obtained. The change in the appropriate classification of the building from agricultural barn to dwelling house would not depend on whether planning permission had been obtained. It would be a question of fact."
[31]The permission which was granted in the present case was for erection of a hay barn. But the building to be erected was to be used only for the storage of hay, straw or other agricultural products.[32]What is clear is that nothing said by their Lordships in Sage, nor the facts of that case or indeed of any other case of which I am aware, deals with the situation which has arisen here, namely a deceit practised from the outset in order to try to take advantage of the four-year rule. True it is that the legislation could have contained provisions which dealt with fraud and concealment of the actual use from the planning authority. It does not do so. Whether it should do so is a matter which, I think, ought to be carefully considered by those responsible for legislation because if Mr Beesley succeeds in his deceit it shows that there is a serious loop hole in the planning law.[33]In First Secretary of State v Arun District Council [2006] EWCA Civ 1172 - which decided breach of conditions and failure to obtain planning permission were each equally covered by the question of enforcement and lawful use certificates -

Lord Justice Sedley commented:

"I can entirely understand the local planning authority's sense of frustration about this. Their planning department is not a police station, and the discovery that a person such as Ms Brown has - not to put too fine a point in it - cheated on a conditional grant of permission, to detriment of her neighbours and of planning control, may well be a matter of time and of chance. The ordinary ten-year period might may well have been thought reasonable for such cases, but - in circumstances which Lord Justice Carnwath's judgment illuminates - it is not what Parliament decided to provide."
That was a case where there was planning permission granted for extension of a dwelling house for a particular purpose, limited to that purpose. In due course that permission was broken but the local authority were not aware of the breach until it was too late to take relevant enforcement action.[34]I come back to the terms of Section 171B (1). Albeit I recognise that the building is not to be regarded as lawful unless constructed in accordance with the permission - on one view this was not because it was constructed for the purpose of being a dwelling - however the building itself, albeit it contained all that was necessary for a dwelling, could have been used nonetheless for the purpose of a barn. The fact that it was not intended to be so used does not affect the actual building itself. That is, in my judgment, consistent with the observations to which I have already referred of Lord Scott in Sage at paragraph 36.[35]Accordingly, the construction of the building was not itself a breach of planning control. One regards the permission as being one to erect a building, admittedly based upon particular plans, which would be a barn. The internal arrangements in the building, if it were to be a barn, would mean there was very little to be constructed - may be a storage container or two and the odd shelves and so on. In a sense, the internal arrangements were not particularly material provided that the building itself could be used for the purposes of a barn. The fact that it was not intended to be so used does not stop the building itself being lawful. If that is right, and I believe it is, then since there was never any intention to use it other than as a dwelling house, and since it has never been used for any other purpose than a dwelling house, there has been no change of use. It was constructed for that use and has ever since been used in such a way.[36]Accordingly, as it seems to me, the four-year protection does not apply in the circumstances of this case. I am bound to say that seems to me a conclusion which accords with not only the merits of this case but prevents a particular sort of fraud being perpetrated because otherwise Mr Beesley would have got away with a plot to breach the planning laws and to obtain a dwelling house in breach of the Green Belt policies and a development that he would never have been able to achieve if he had gone about things in an honest fashion.[37]Miss Davies warns me not, as it were, to twist the law in order to meet what is regarded as the merits of the case. I do not think I have been doing that. It seems to me that a fraud should not succeed unless the provisions of the statute are such that make a conclusion to that effect inevitable.[38]Accordingly the inspector was wrong to decide that the certificate of lawful use should be granted. The decision is quashed and that of the council restored, albeit for different reasons, but this is a situation where a certificate should not be granted. It follows enforcement action can be taken against this dwelling.[39]I would only add this. It may well be that a criminal offence has been committed in that the planning permission was obtained by deception and so an advantage was thereby obtained for Mr Beesley. Indeed, the contrary is unarguable. He clearly did obtain the planning permission by deception. He then proceeded to deceive the council by pretending that what was built was a barn when in fact it was a dwelling house, and he was living in it. Whether or not it is decided to prosecute, it may well be that any benefit he has obtained as a result from the value of the dwelling house, if it were to remain, is a value that can be removed from him under the Proceeds of Crime Act. That, I suspect, will only arise if the dwelling house is allowed to remain notwithstanding the decision I have reached.[40]For these reasons the claim is allowed and the grant of the certificate is quashed.[41]MR BEGLAN: In the light of your Lordship's judgment, I do apply for my costs.[42]MISS DAVIES: I have not seen a schedule of costs.

MR JUSTICE COLLINS: I am dealing with the principle.

[44]MISS DAVIES: In principle, I would have submissions to make about grounds - - - - -[45]MR JUSTICE COLLINS: You would say you should not have to pay all the costs. He has lost on a substantial amount. I agree with that. (To Mr Beglan) I do not think you are entitled to all your costs.[46]MR BEGLAN: All I would say about that is perhaps under your Lordship's direction the additional time that was spent arguing those grounds - perhaps that is not that significant - but I accept the point.

MR JUSTICE COLLINS: One-third?

[48]MISS DAVIES: A substantial amount of funding - - to pay one-third of the costs, that seems to me - - - - -[49]MR JUSTICE COLLINS: Yes. You can have one-third of your costs to be subject to detailed assessment if not agreed.[50]MISS DAVIES: My Lord, if I could take instructions. I do have an application to make.

MR JUSTICE COLLINS: Do you really want to take this further?

[52]MISS DAVIES: I do need to apply for permission to appeal at this stage so that those who instruct me can consider whether it should go further or not.

MR JUSTICE COLLINS: I think you had better persuade the Court of Appeal.

[54]MISS DAVIES: Would your Lordship order 21 days from the date of the transcript?[55]MR JUSTICE COLLINS: Yes, from the date you receive [it]. It should be the beginning of next term.

Cited in 1 later judgment