Welwyn Hatfield Council, R (on the application of) v Secretary of State for Communities & Local Government & Anor

For the four-year limitation period under section 171B(2) of the Town and Country Planning Act 1990, the question is whether a building has in fact been used as a single dwelling house. It is unnecessary to establish that the building objectively has the appearance or status of a dwelling house. An unusual structure may qualify if it is capable of, and has been, used as a dwelling.

However, where a building erected pursuant to permission for a barn could physically be used as a barn, its construction is not itself an unauthorised building operation merely because it was intended from the outset to be used as a dwelling. If it has never been used for any other purpose, there has been no change of use. The statutory limitation therefore does not apply.

Welwyn Hatfield Council brought a claim under section 288 of the Town and Country Planning Act 1990 challenging an inspector’s decision to grant a lawful development certificate.

The interested party had obtained permission for a hay barn but constructed a building fitted out as a dwelling and claimed to have occupied it continuously for more than four years. The central issues were whether the structure had to be a dwelling house in itself, whether its construction constituted a breach of planning control, and whether there had been a change of use.

1. The claim was allowed. The inspector’s decision was quashed, the Council’s refusal was restored, and enforcement action could be taken.
2. Section 171B(2) concerns a change in the use of a building for use as a single dwelling house. The statutory question is whether the building was actually used as such, not whether it would objectively be identified as a dwelling house. Capability for residential use and factual residential use were questions of fact. The inspector had therefore adopted the correct approach, and Brendan v First Secretary of State was not followed insofar as it required the building first to be established as a dwelling house.
3. The construction did not constitute a breach falling within section 171B(1). Although permission was granted for a hay barn, the building itself could have been used as a barn. Its intended residential use did not prevent the physical construction from being lawful.
4. Because the building was never used for any purpose other than as a dwelling, there had been no change of use for section 171B(2). The four-year protection therefore did not apply.
5. The court recognised that the result exposed a possible gap in the legislation where deception and concealment were used to obtain permission and defeat planning control. That policy concern could not justify altering the statutory construction. The provisions did not expressly address fraud or concealment.

The grant of the certificate was quashed. The claimant was awarded one-third of its costs, subject to detailed assessment if not agreed. Permission to appeal was left to the Court of Appeal.