Welwyn Hatfield Council v Secretary of State for Communities and Local Government & Anor

For the purposes of the Town and Country Planning Act 1990, a building permitted for one use may undergo a change of use to a single dwelling house even if it was never actually used for its permitted purpose. Use for a purpose other than the permitted use is sufficient. Alternatively, a change from no use to residential use may satisfy the same requirement.

Where the circumstances fall within section 171B(2), its four-year enforcement period displaces the ten-year period in section 171B(3). The statutory time limits are applied objectively. Dishonesty in obtaining the original planning permission does not, without an applicable statutory provision, remove the benefit of the limitation period. Any wider exception for dishonest concealment is a matter for Parliament.

Welwyn Hatfield Council granted planning permission for a hay barn subject to a condition restricting its use to agricultural storage. The building was instead constructed and occupied as a single dwelling house following deliberate deception by the applicant.

An inspector allowed the applicant’s appeal under section 195 and granted a certificate of lawfulness, finding that residential use had continued for more than four years. On the Council’s section 288 challenge, Collins J held that there had been no change of use because the building had never been used for any other purpose. He therefore held that section 171B(2) did not apply. The Secretary of State and the applicant appealed. The central issues were whether the construction or use fell within the four-year limitation provisions, and whether the Council could rely on the ten-year period for a material change of use of land.

1. Appeals allowed. The inspector’s decision was restored. The applicant was entitled to a certificate of lawfulness of existing residential use.
2. The building’s physical and design features showed that it was a dwelling house, not a hay barn. The construction was therefore not fully in accordance with the permission and constituted building operations without planning permission within section 171B(1). However, the Court did not decide the relationship between immunity for operational development under subsection (1) and the lawfulness of the building’s use.
3. The permitted use was agricultural storage, whether derived from the permission for a hay barn or from its express condition. Residential occupation was a different use. For section 171B(2), that was a change of use to a single dwelling house even though the building had never actually been used for agricultural storage. It was sufficient that it was used for a purpose other than the permitted use. The same result could be reached by treating the interval before occupation as a period of no use.
4. Once section 171B(2) applied, the four-year period displaced the ten-year period in section 171B(3), even if the facts could also be analysed as a material change of use of land.
5. The statutory scheme required an objective assessment of the building, land and use. The Court declined to adopt a strained construction because of the applicant’s deception. Questions of dishonesty, fraud, illegality or estoppel had not been argued and were not decided. The Court also left open whether an enforcement notice directed at use of land could require removal of a building whose construction was immune under section 171B(1).
6. The Court emphasised that planning authorities should inspect the inside as well as the outside of buildings. Any amendment to prevent dishonest advantage being taken of the four-year periods was for Parliament.

• Court of Appeal (Civil Division) — [2010] EWCA Civ 26 : allowed the appeals and restored the inspector’s decision.
• Administrative Court — Collins J, [2009] EWHC 966 (Admin) : allowed the Council’s challenge under section 288 and held that section 171B(2) did not apply because there had been no change of use.
• An inspector appointed by the Secretary of State had allowed the section 195 appeal and granted a certificate of lawfulness on 8 July 2008.