Local government - Barns - Certificates of lawful use - Change of use

Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government and Anor: SC (Lords Phillips (president), Rodger, Walker, Brown, Mance, Clarke, Lady Hale): 6 April 2011

The appellant local authority appealed against a decision ([2010] EWCA Civ 26, [2010] PTSR 1296) upholding a certificate of lawfulness granted to the respondent (B) under part VII to section 191(1)(a) of the Town and Country Planning Act 1990. In 2000 B had obtained planning permission for a hay barn.

In 2002 he constructed a building which from the outside looked like a barn, but internally was a dwelling-house. The building was completed in July 2002 and one month later B moved in.

He lived there for four years.

The local authority remained unaware that the building was being used as a dwelling-house.

In August 2006 B applied for a certificate of lawfulness on the basis of a change of use and that the four-year time limit for taking enforcement action had elapsed in accordance with section 171B(2).

The local authority refused the certificate, but a planning inspector later granted it. On appeal, the Court of Appeal upheld the certificate on the basis that there had been a change of use from a barn to a dwelling-house within section 171B(2).

It also found a change of use on the basis that in the short period between completion of the building and its residential occupation, the building had had no use, so that there had been a change of use from no use to use as a dwelling-house when B moved in.

The local authority submitted that the Court of Appeal had erred in finding that the case fell within section 171B(2) on the basis that there had been a change of use.

The local authority further submitted that even if section 171B(2) was applicable, B’s admission that he had deliberately deceived the local authority when applying for the permission, should preclude him from obtaining a certificate on public policy grounds.

Held: (1) The essential question was whether the building constructed and completed was a ‘barn’.

The building constructed was not a building which could be regarded as having any permitted use.

Aside from its appearance, it was in every respect designed and built as a house.

Accordingly, the first basis on which the Court of Appeal held that there had been a change of use within section 171B(2) was unsustainable.

It was doubtful whether change of use under section 171B(2) could consist of a simple departure from permitted use without any actual prior use; the word ‘use’ in section 171B(2) was on its face used in a real or material sense, rather than in the legal sense of ‘permitted use’ (see paragraphs 11, 13-14 of judgment).

(2) The Court of Appeal’s analysis that there had been a change of use from ‘no use’ to use as a dwelling-house was counter-intuitive.

The question of whether it was right to describe a dwelling-house as being of no use as a dwelling-house, when it had just been completed and its owner intended to occupy it within days, had to be considered on a broader and longer-term basis, Impey v Secretary of State for the Environment [1984] 47 P & CR 157 QBD applied.

Too much stress had been placed on the need for ‘actual use’, with its connotations of familiar domestic activities carried on daily.

In dealing with a subsection which spoke of ‘change of use of any building to use as a single dwelling-house’ it was more appropriate to look at the matter in the round and ask what use the building had or of what use it was.

It was artificial to say that a building had, or was of, no use at all, or that its use was as anything other than a dwelling-house, when its owner had just built it to live in and was about to move in within a few days (paragraphs 27, 29).

(3) It was strictly unnecessary to address the local authority’s second argument, but it was one of general importance.

Whether conduct would on public-policy grounds disentitle a person from relying upon an apparently unqualified statutory provision had to be considered in light of the principle that a person should not benefit from his own wrong; that principle was not restricted to those cases involving the commission of a crime, R v Registrar General Ex p Smith [1991] 2 QB 393 CA (Civ Div) applied.

It also had to be considered with regard to any nexus existing between the conduct and the statutory provision. In relation to section 171B(2), the four-year statutory periods had to 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 would yield and the status quo prevail.

However, positive and deliberately misleading false statements by an owner which successfully prevented discovery took the case outside that rationale.

B’s conduct, although not identifiably criminal, consisted of positive deception in matters integral to the planning process and was directly intended to undermine the regular operation of that process.

He would be profiting directly from that deception if the passing of the normal four-year enforcement period were to entitle him to resist enforcement.

The apparently unqualified statutory language could not contemplate or extend to such a case (paragraphs 31, 53-54, 56).

Appeal allowed.

James Findlay QC, Wayne Beglan (instructed by Sharpe Pritchard) for the appellant; James Maurici QC, Sarah-Jane Davies (instructed by Treasury Solicitor) for the first respondent; Alexander Booth (instructed by Sherrards) for the second respondent.