Secretary of State for Communities and Local Government and another v Welwyn Hatfield Borough Council

The Supreme Court considered (1) whether the four-year immunity in section 171B(2) of the Town and Country Planning Act 1990 for a "change of use" to a single dwellinghouse applies where a dwelling has been newly constructed and (2) whether deliberate deception in obtaining planning permission can disentitle the perpetrator to rely on the statutory time limits and a certificate of lawfulness under section 191(1)(a). The court held that section 171B(2) is concerned with a change of use of an existing building and is not apt to cover the situation of a newly constructed dwelling of which there was no prior use; accordingly the provision did not apply on the facts. In any event the court held that deliberate and sustained deception in the planning process, here obtaining planning permission for a barn while intending and building a dwelling to conceal the breach from the local authority, could not be allowed to produce the statutory immunity: public policy disentitled the owner from relying on the limitation provisions and the section 191 certificate was set aside. The court also refused the owner permission to adduce fresh evidence seeking to contradict the inspector’s findings on intent and credibility.

Background and facts:

• In 1999 Mr Beesley obtained planning permissions described as for a hay barn but then built and occupied, from August 2002, a building that was in design and use a dwellinghouse. The permissions were subject to a condition limiting use to agricultural storage.
• In August 2006 Mr Beesley applied under section 191(1)(a) for a certificate of lawfulness asserting continuous residential use for over four years; the planning inspector granted the certificate.

Procedural history:

• The council appealed and Collins J (High Court) overturned the inspector ([2009] EWHC 966 (Admin)).
• The Court of Appeal reversed Collins J ([2010] EWCA Civ 26), holding that the four-year rule under section 171B(2) could apply.
• The council appealed to the Supreme Court ([2011] UKSC 15).

Nature of the claim and relief sought: Mr Beesley sought a certificate of lawful existing use under section 191(1)(a) on the basis that four years had elapsed since the breach, invoking the four-year immunity in section 171B(2).

Issues framed:

1. Whether section 171B(2) applies where a building constructed as a dwelling is first occupied after completion (i.e. whether there was a "change of use" to which the four-year period applies).
2. Whether deliberate deception in obtaining planning permission disentitles a person on public policy grounds from relying on the statutory time limits and the section 191 certificate.

Court’s reasoning:

• On the first issue the court analysed the statutory scheme. It concluded section 171B(2) deals with a change of use of an existing building and is not apt to cover newly constructed dwellings (the four-year protection for building operations is provided by section 171B(1)). The word "use" in s171B(2) was intended in a real or material sense and the "nil use" analysis adopted by the Court of Appeal was artificial and unsatisfactory.
• On the second issue, the court accepted established public policy principles that a person should not profit from his own wrong. The inspector had found deliberate, sustained deception by Mr Beesley in obtaining planning permission and concealing the true nature and use of the building. The court refused to admit fresh evidence intended to contradict those findings. Applying public policy, the court held that the apparently unqualified protection in sections 171B and 191 cannot be relied on where the immunity was brought about by deliberate deception integral to the planning process; accordingly the certificate was set aside.

Disposition: The Supreme Court allowed the council's appeal, set aside the inspector’s grant of the certificate and refused the application to admit fresh evidence.

Appeal allowed. The Supreme Court held that section 171B(2) is concerned with change of use of an existing building and does not properly cover a newly constructed dwelling; alternatively, and in any event, deliberate and sustained deception in obtaining planning permission and concealing the breach disentitles the perpetrator on public policy grounds from relying on the statutory limitation periods and any certificate under section 191(1)(a). The grant of the certificate was set aside and the application to adduce fresh evidence was refused.

Planning inspector granted a s191(1)(a) certificate; High Court (Collins J) overturned the inspector ([2009] EWHC 966 (Admin)); Court of Appeal (Pill, Mummery and Richards LJJ) reversed Collins J ([2010] EWCA Civ 26); appeal to the Supreme Court ([2011] UKSC 15) allowed the council's appeal and set aside the certificate.