April 20th, 2011 by Louise Humphreys
Posted In: Planning
Readers will no doubt recall the case involving Mr Beesley who had applied for planning permission for a barn, but who when the barn was built fitted it out as a house. Upon completion, the house was occupied as his home and this use continued for more than four years when Mr Beesley then applied for a lawful development certificate. Until the application was made, the LPA had been entirely unaware that any unauthorised development had taken place. Mr Beesley argued that the house was now immune from enforcement under the 4-year rule and was therefore lawful. The LPA refused to grant an certificate.
As might be expected appeals and court cases followed. However, it was at the Court of Appeal where things took an interesting turn with Lord Justice Mummery expressing surprise that the Council had not argued that the deception by Mr Beesley in applying for a barn he always intended to use as a house would stop him from obtaining immunity. And so to the Supreme Court, where needless to say the Council took up this point (among others not dealt with in this post) - SSCLG v Welwyn Hatfield Borough Council  UKSC 15.
In giving one of the two principal judgments, Lord Mance summarised the factual background as follows (paragraphs 31 and 32):
First, Mr Beesley intended to deceive the council from the outset, that is (at least) when he made each of his successive planning applications in March 2000 and January 2001; in each application he described the proposed building as a hay barn, said that the application involved no change of use of land, and, in relation to sewage disposal, answered not applicable. Secondly, when building his house, he deliberately refrained from giving the notice under the building regulations, applicable to a house but not an agricultural barn, so committing an offence triable summarily and punishable by a fine. Thirdly, he did not register for council tax or on the electoral register at the building. Fourthly, he gave the council as his address his office, low key existence, the house being at the end of a lane or track apparently accessible from the road only by a locked gate.
The aim of this conduct was, firstly, to obtain a planning permission which would not have been granted had the application been for a dwelling house, secondly, to conceal the fact that what was being built was and was to be a dwelling house and, thirdly to live in the house without being detected or therefore having enforcement steps taken for the four year periods stated in section 171B(1) and (2), after which a certificate would be sought under section 191. The council now submits that Mr Beesley's deceit should preclude Mr Beesley from obtaining a certificate under section 171B(2), even if (contrary to my view) that subsection were otherwise applicable.
After reviewing the judicial authorities on the issue of legal entitlements being defeated by the fraud or deception of the applicant or claimant, Lord Mance concluded (paragraphs 54, 56 and 58) that:
Whether conduct will on public policy grounds disentitle a person from relying upon an apparently unqualified statutory provision must be considered in context and with regard to any nexus existing between the conduct and the statutory provision. Here, the four-year statutory periods must have been conceived as periods during which a planning authority would normally be expected to discover an unlawful building operation or use and after which the general interest in proper planning control should yield and the status quo prevail. Positive and deliberately misleading false statements by an owner successfully preventing discovery take the case outside that rationale.
Here, Mr Beelsey's conduct, although not identifiably criminal, consisted of positive deception in matters integral to the planning process (applying for and obtaining planning permission) and was directly intended to and did undermine the regular operation of that process. He would be profiting directly from this deception if the passing of the normal four-year period for enforcement which he brought about by the deception were to entitle him to resist enforcement. The apparently unqualified statutory language cannot in my opinion contemplate or extend to such a case.
I do not consider that sections 171B(2) and 191(1)(a) are applicable to the facts of this case. Had I considered otherwise, I would have concluded that their language could not have been intended to cover the exceptional facts of this case, where there was positive deception in the making and obtaining of fraudulent planning applications, which was directly designed to avoid enforcement action within any relevant four year period and succeeded in doing so. This is a conclusion which would still be relevant, were any application to be made for a certificate under section 191(1)(b) or any reliance sought to be placed upon section 171B(1) to preclude enforcement action in respect of the building itself.
Another interesting note was Lord Brown's comments concerning Clause 104 in the Localism Bill. This is the clause which is intended to expressly to deal with issues of concealment - see my earlier post; Lord Brown did not accept that amending legislation is required. It will be interesting to see what the Government now does in this respect, although as currently drafted clause 104 goes considerably further than deliberate deception.