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Deliberate concealment of a breach of planning control by the design of building

The Old Barn, White Lodge Farm, Bulls Lane, Brookman's Park, Hatfield AL9 7AZ

Ref: APP/C1950/C/14/3000358, APP/C1950/C/14/3000361

David Lintott successfully appeared for Welwyn Hatfield BC in three conjoined enforcement notice appeals before Inspector Stephen Brown MA(Cantab) DipArch RIBA. In dismissing the appeals Stephen Brown held that the Appellant had deceived the Council in constructing "the Old Barn" as a dwelling house which resembled a barn.

In the enforcement notices to which appeals A and B related the breach of planning control was the erection of a building without permission, in B deliberate deception was alleged. The final enforcement notice the subject of appeal C related to the use of the land for residential purposes.

The principal question in Appeals A and B on ground (d) was whether on the balance of probabilities the operational development was substantially completed at least four years before the notices were issued on 15 November 2014. The Inspector held at [24]:

"24. Lawful operational development does not and cannot exist independently of some intended, designed purpose. In this case, while the external appearance is of an agricultural barn, this is belied by the internal layout, fixtures, finishes and furnishing, and the clearly intended purpose of the building was its use as a dwelling house. This was not substantially complete until 2013, when it became habitable on a continuous basis, significantly less than the four years before issue of the enforcement notices – the period necessary to gain immunity from enforcement action."

In relation to the alleged deception in Notices B and C the Inspector held at [32]-[33]:

"32. While the building is readily visible from the road, beyond the entrance gates, it gives virtually no indication of its residential use. I concur with the Council's view that the appellant's intention from the beginning was to build a dwelling that did not appear as such. Overall, I consider the general design of the Old Barn is a contrivance, intended to mislead the viewer to believe that it is some type of agricultural building that might conceivably be ancillary to other site uses. This adds further weight to my view that the appellant has deliberately worked to deceive the Council for a number of years.

"32. While the building is readily visible from the road, beyond the entrance gates, it gives virtually no indication of its residential use. I concur with the Council's view that the appellant's intention from the beginning was to build a dwelling that did not appear as such. Overall, I consider the general design of the Old Barn is a contrivance, intended to mislead the viewer to believe that it is some type of agricultural building that might conceivably be ancillary to other site uses. This adds further weight to my view that the appellant has deliberately worked to deceive the Council for a number of years.

In relation to the deemed applications for planning permission, the Inspector held that the building was a new building completed in 2013 with a different footprint to that previously on site. It could not come within the terms of the fourth bullet of paragraph 89 of the NPPF as it was not a replacement building in the same use as a previous building on site (paragraph [41]). Even if viewed as an existing building to which paragraph 90 applied it would not benefit from the terms of the fourth bullet of that paragraph because the barn had no previous lawful use as a storage building. Even if it were viewed as a storage building converted to residential use, it would be likely that the change would result in increased vehicular activity, and the creation of a domestic curtilage with associated trappings, which would impinge upon the openness of the area. Furthermore, the development would not preserve openness – one of the essential characteristics of the Green Belt - and would to a small degree encroach upon the countryside – to the detriment of one of the five purposes served by the Green Belt. Furthermore, it would conflict with Policy GBSP2 of the Welwyn Hatfield District Plan of 2005, which seeks to concentrate development in two principal towns. As a result it would fail to promote the Green Belt purpose of assisting in urban regeneration, by encouraging the recycling of derelict and other urban land. (paragraph [37]-[38])

However viewed, therefore the Old Barn was inappropriate development in the Green Belt and there were no other considerations that clearly outweighed the harm to the Green Belt by reason of inappropriateness, and any other harm, and that amounted to the very special circumstances necessary to justify the development.

Click here to read the Inspector's decision.