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

Section 171B(2) of the Town and Country Planning Act 1990 protects only a breach consisting of a change in the actual use of a building to use as a single dwellinghouse. It does not cover the ordinary residential use of a newly constructed, unauthorised dwelling merely because a few days elapsed between completion and occupation. Use is assessed in the round and over a broader period; a purpose-built home intended for immediate occupation does not acquire a temporary nil use.

Statutory immunity and a certificate of lawfulness are also unavailable where positive, deliberate deception integral to the planning process was designed to prevent, and did prevent, enforcement within time. That public-policy limitation is exceptional and depends on the nexus between the wrongdoing and the statutory benefit.

Planning permission was obtained for an agricultural hay barn on Green Belt land. The resulting building looked externally like a barn but had been designed and constructed internally as a dwellinghouse. Its owner occupied it for four years while deliberately concealing its true character and then applied under section 191(1)(a) of the Town and Country Planning Act 1990 for a certificate of lawful existing use.

A planning inspector granted the certificate. Collins J allowed the council's appeal in [2009] EWHC 966 (Admin). The Court of Appeal reversed that decision in [2010] EWCA Civ 26; [2010] PTSR 1296, holding that occupation constituted a change from either the permitted use or an intervening period of no use.

The Supreme Court had to decide whether section 171B(2) applied to the use of the newly constructed building as a dwellinghouse and, if it did, whether deliberate deception prevented reliance on the statutory enforcement period and certificate procedure.

1. Appeal allowed unanimously. Lord Mance delivered the leading judgment, with which Lord Phillips, Lord Walker, Lady Hale and Lord Clarke agreed. Lord Rodger and Lord Brown also agreed that the appeal should be allowed. The grant of the certificate under section 191(1)(a) of the Town and Country Planning Act 1990 was set aside.

2. The building was a dwellinghouse, not the permitted barn. Its external appearance was deliberately deceptive, while its design, construction, facilities, purpose and intended character were residential. Applying Sage v Secretary of State for the Environment, Transport and the Regions [2003] UKHL 22, planning classification depended on the building's character as constructed and intended, not its façade.

3. Section 171B(2) did not apply. The subsection requires a change in the actual or material use of a building to use as a single dwellinghouse. A newly built, unauthorised house does not undergo such a change merely because occupation starts a few days after completion. The building was constructed as a home for imminent occupation and did not acquire an intervening nil use. Use must be considered in the round and over a broader period, rather than day by day. Unauthorised construction falls within section 171B(1); other breaches concerning use may fall within section 171B(3).

4. On the independently sufficient public-policy ground, the apparently unqualified language of sections 171B and 191 did not extend to the exceptional deception proved. Whether misconduct defeats reliance on a statutory benefit depends on its context and nexus with that benefit. Ordinary unlawful development, ancillary concealment or illegality under another regulatory regime would not suffice. Here, positive falsehoods integral to obtaining planning permission were intended to mislead the council and prevent timely enforcement, and succeeded in doing so. Permitting reliance on the resulting limitation period would allow the owner to profit directly from the deception and would frustrate the statutory policy.

5. The owner's application to adduce fresh evidence was refused. The court proceeded on the basis that the reasonable-diligence condition from Ladd v Marshall [1954] 1 WLR 1489 was satisfied or inapplicable and left the potential influence of the evidence open. The proposed evidence nevertheless failed the requirement of apparent credibility because it contradicted repeated prior statements and answers and was intrinsically implausible.

1. United Kingdom Supreme Court: In [2011] UKSC 15, unanimously allowed the council's appeal, reversed the Court of Appeal's disposition and set aside the certificate under the Town and Country Planning Act 1990.
2. Court of Appeal: In [2010] EWCA Civ 26; [2010] PTSR 1296, allowed the appeals of the Secretary of State and the landowner and reversed Collins J, holding that residential occupation constituted a change of use for section 171B(2).
3. High Court: Collins J, in [2009] EWHC 966 (Admin), overturned the inspector's decision because there had been no change of use within section 171B(2).
4. Planning inspector: Allowed the landowner's appeal from the local planning authority and granted a certificate of lawful existing use under section 195(2).