UKSC: Lord Phillips (President), Lord Rodger, Lord Walker, Lady Hale, Lord Brown, Lord Mance and Lord Clarke.
The Supreme Court has allowed the appeal of Welwyn HC appeal against the decision of the Court of Appeal  EWCA Civ 226;  P.T.S.R. 1296 and restored the decision of Collins J.  EWHC 966 (Admin);  J.P.L. 352 holding (1) that an unpermitted building only built and designed for one purpose could not benefit from the four year protection provided to use as a single dwellinghouse by s.171B(2) because the use of the building had not been changed and (2) that in an appropriate case the principle of public policy that a person should not benefit from their own wrong can be relied upon to defeat an application for a certificate of lawful use.
James Findlay QC and Wayne Beglan acted for the successful Appellant.
Summary of the case
In 2001 Mr Beesley, the Second Respondent; applied for and obtained planning permission to construct a hay barn for grazing and haymaking on open land which he owned in the Green Belt. In 2002 he constructed a building which was to all external appearances the permitted barn, but internally was a fully fitted-out dwelling house with garage, living room, study, bedrooms, bathrooms and gym.
In August 2002 he moved in with his wife and lived there continuously for four years. Welywn Hatfield Borough Council, the Appellant, in whose area the property lies, remained unaware that the building was constructed as, or was being used as, a dwelling house.
In August 2006 Mr Beesley made an application for a certificate of lawfulness for use of the building as a dwelling house. He contended that the four year time limit for taking enforcement action in section 171B(2) of the Town and Country Planning Act 1990 ("the 1990 Act") was applicable and had elapsed.
The section provides that "where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house) no enforcement action may be taken after the end of four years beginning with the date of the breach". The certificate was granted and subsequently upheld by the Court of Appeal, which decided that there had been a "change of use" within section 171B(2) such that immunity from enforcement was established. Collins J. held that in those circumstances the 10 year rule provided in s.171B(3) applied and quashed the inspector's decision. The Court of Appeal reversed his decision.
The Council appealed to the Supreme Court on two grounds. First, it challenged the Court of Appeal's decision that there had been a relevant change of use. Secondly, it argued that even if there had been such a change, the principle of public policy that no one should be allowed to profit from his own wrong precluded Mr Beesley from relying on section 171B(2). The Supreme Court allowed the appeal.
The decision is of interest to planning practitioners for the following principal reasons
- It provides an important limitation on the ability of CLEUD applicants to rely on the 4 year rule provided by s.171B(2) in cases involving a newly built structure intended for use of a building as a single dwellinghouse because S.171B(2) is not apt to encompass the use of a newly built dwelling as a dwelling house [27-30]; . In addition, the court doubted that change of use for the purposes of s.171B(2) could consist of a simple departure from permitted use. The word "use" in the section is directed to real or material use , .
- It makes clear that the principle of public policy that a person should not benefit from their own wrong is capable of being applied in the context of the code of the Planning Acts , -, , . The principle was held to apply on the facts of the case. It was important that there had been positive deception of the LPA – in this case by the "cover story" of the application for a hay barn. Lord Brown suggested it may apply to cases involving facts like the well known Fidler case -. Lord Mance suggested it may apply to cases where an authority is deliberately tricked by an applicant into not taking enforcement action in time . The Court also made clear that its approach to the application of public policy would apply equally to operational development which might otherwise be protected against enforcement by s.171B(1) , .
- By analogy the same arguments may be raised to meet an appeal under ground (d) made against an enforcement notice.