Dishonesty And Certificates Of Lawfulness

Under the Town and Country Planning Act 1990, a person may apply for a Certificate of Lawfulness where:

• there has been a breach of planning control relating to building, engineering, mining or other operations after 4 years from when they are substantially completed;
• there has been a breach of planning control consisting of the change of use of a building to a single dwelling house after 4 years from the date of the breach; or
• for any other breach of planning control, 10 years from the date of the breach.

On 6 April, the Supreme Court gave its judgment in Secretary of State for Communities and Local Government v Welwyn Hatfield Borough Council. The case has been widely reported in the press and concerned what appeared to be a barn built by a Mr Beesley. Mr Beesley obtained permission for a barn; and built a building which looked like the barn which had been approved. Inside, the barn was in fact a dwelling house comprising amongst other things, a gym and 3 bedrooms, 2 of which were en suite.

Mr Beesley had not obtained building regulation approval for the "barn", nor had he registered it for the purposes of council tax.

After he and his family had lived in the "barn" for 4 years, Mr Beesley applied for a Certificate of Lawfulness declaring that the building was lawful and immune from enforcement action by the Council.

The Court of Appeal held that the Mr Beesley had established a change of use either from the use permitted by the planning permission, or from a period of "no use" (because the building was never used for agricultural purposes) to that of a residential dwelling house. The Supreme Court overturned the Court of Appeal's judgment and unanimously held that:

• the building was not, and had never intended to be, constructed as a barn and, therefore, there was no change of use; and
• in any event, public policy dictates that Mr Beesley should not profit from his own wrong and could not rely on his own dishonesty to obtain a certificate of lawfulness.

The Supreme Court made it clear that the public policy point should apply only in the most extreme cases where the applicant has deliberately concealed the breach of planning control.

Comment

It is easy to sympathise with the reasoning of the Supreme Court in holding that an applicant should not be allowed to take advantage of his own dishonesty to obtain a Certificate of Lawfulness. In practice, however, this case introduces several issues for developers and purchasers. The timeframe in this case was relatively short: Mr Beesley applied for the Certificate of Lawfulness almost immediately after 4 years had expired. He had applied for the original planning permission and he and his family had lived in the "barn" and continued to do so when he made the application.

The situation becomes more difficult where an applicant for a Certificate of Lawfulness is different to the original owner of the property, particularly if there is a question mark over whether the use of the building has been concealed.

Purchasers of properties will need to be more cautious. Previously, knowledge that any breach of planning control had carried on for 4 or 10 years provided a fair measure of comfort. Now it will be necessary at least to make enquiries as to whether an exercise of dishonesty or concealment has taken place.

Purchasers may now want to put the onus on vendors to obtain any necessary Certificate of Lawfulness. It is always advisable to seek legal advice before submitting an application for a Certificate of Lawfulness, this case makes it even more important to do so.

The contents of this brochure are intended as guidelines for clients and other readers. It is not a substitute for considered advice on specific issues. Consequently, we cannot accept any responsibility for this information or for any errors or omissions.

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