The land-owner had planning permission to erect a barn, conditional on its use for agricultural purposes. He built inside it a house and lived there from 2002. In 2006. He then applied for a certificate of lawful use. The inspector allowed it, and the Council appealed. The Council now also argued that parliament could not have intended that the obtaining of such permissions by deceit should be effective.
Held: The Council’s appeal succeeded. There had been no change of use as such under which reliance could be placed on section 171B. The use had been consistent, and there had been no use made of the permitted use. The word ‘use’ in this context referred to the actual way the land was used and was not a reference to the permission terms.
Furthermore, the deception used to cloak the use meant that reliance upon section 171B would not be available. There was no requirement that such deception should be of any criminal standard.
The view taken in Impey was to be preferred to that in Backer. Lord Mance said: ‘Too much stress has, I think, been placed on the need for ‘actual use’, with its connotations of familiar domestic activities carried on daily. In dealing with a subsection which speaks of ‘change of use of any building to use as a single dwelling house’, it is more appropriate to look at the matter in the round and to ask what use the building has or of what use it is. As I have said, I consider it artificial to say that a building has or is of no use at all, or that its use is as anything other than a dwelling house, when its owner has just built it to live in and is about to move in within a few days’ time (having, one might speculate, probably also spent a good deal of that time planning the move).’
Lord Phillips, President, Lord Rodger, Lord Walker, Lady Hale, Lord Brown, Lord Mance, Lord Clarke
[2011] UKSC 15, UKSC 2010/0036, [2011] PTSR 825, [2011] 15 EG 93, [2011] 2 AC 304, [2011] 2 WLR 905
Bailii, Bailii Summary, SC, SC Summary
Town and Country Planning Act 1990 171B 191(1)
England and Wales
Citing:
At first Instance – Welwyn Hatfield Council, Regina (On the Application of) v Secretary of State for Communities and Local Government and Another Admn 7-Apr-2009
The council appealed against the decision of the inspector that the land-owner should be granted a certificate of lawful development.
Held: Collins J over-turned the inspector’s decision. He viewed the building as the permitted barn, but went . .
Appeal from – Welwyn Hatfield Council v Secretary of State for Communities and Local Government and Another CA 29-Jan-2010
The land owner had received planning consent to erect a barn. Instead he constructed a house, but disguised it.
Held: The appeal succeeded. Once the house had been used as such for four years, the authority was obliged to issue the certificate . .
Cited – Hartley v Minister of Housing and Local Government CA 1970
A petrol station operated with an area to display and sell cars. Sales stopped in 1961 when the owner died. His son was thought too young and inexperienced son to be involved in car sales. Sales were resumed in 1965 when a new owner acquired the . .
Cited – Pioneer Aggregates (UK) Limited v Secretary of State for the Environment HL 1985
The House considered the concept of a spent planning consent.
Held: This was a mineral operation and every shovelful dug amounted to another act of development. Therefore, although it had been begun, the planning permission was not spent and . .
Cited – White v Secretary of State for the Environment CA 1989
W owned land which had been used for many years to store showground equipment over the winters. He applied for an existing use certificate. After refusing it, the authority issued enforcement proceedings. The inspector refused W’s appeal saying that . .
Cited – Sage v Secretary of State for the Environment, Transport and the Regions and others HL 10-Apr-2003
The appellant had challenged an enforcement notice requiring him to pull down a partially built house. The issue was when the four year limitation period had commenced. Did the four year limitation period commence when the works were complete, or . .
Cited – Prossor v Minister of Housing and Local Government 1968
The owner of a garage sought planning permission to replace a repair shop on part of his site with a new building. There had been an established use as a petrol filling station and motor repair shop. The permission was granted subject to a . .
Cited – Backer v Secretary of State for the Environment 1983
Complaint was made that the occupier had taken up occupation of a vehicle, a Commer van, ‘adapted’ for human habitation, and therefore under the control of the 1960 Act, but on land for which there was no planning permission for use for caravans. . .
Cited – Impey v Secretary of State for the Environment QBD 2-Jan-1983
The owner of a dog kennels carried out works both internal and external to change the building into two residential units. The Council served an improvement notice. The respondent found that no material change of use had yet taken place.
Held: . .
Cited – Van Dyck v Secretary of State for the Environment CA 1993
The court asked whether the four year enforcement rule applied in respect of subdivision of a larger building to create single dwelling houses or applied only in the case of conversion of a single building to single dwelling houses.
Held: It . .
Cited – First Secretary of State v Arun District Council and Another CA 10-Aug-2006
The land-owner had received planning permission to construct an extension to her home subject to a condition that it could be occupied only by a dependant relative. In 1996, she let it to students in breach of the condition. In 1996, te council took . .
Cited – George Booth v George, Earl of Warrington PC 29-Apr-1714
A under a pretence that B was instrumental in procuring a beneficial marriage for C obtains a bond from C to B for 1000 guineas, as a reward for his services. The bond is paid when due; but in nine years afterwards C discovers the whole to be a . .
Cited – Cleaver v Mutual Reserve Fund Life Association CA 1892
The deceased’s executors objected to his widow maintaining action on a trust created by an insurance policy in her favour under the Act. She had been convicted of his murder. The executors’ case was that ‘it is against public policy to allow a . .
Mentioned – The Bulli Coal Mining Company v Patrick Hill Osbourne and Another PC 1899
(New South Wales) . .
Cited – Lynn v Bamber 1930
A cause of action in contract arises when the contract is breached. Talbot J said: ‘There is no question that the three learned judges who decided that case stated in emphatic and unambiguous language that contributory negligence is a good defence . .
Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
Cited – Regina v South Ribble Borough Council Housing Benefit Review Board, ex parte Hamilton CA 24-Jan-2000
A statutory provision entitled a person to housing benefit if he had no income above a specified amount, and it had been previously decided that receipt of income support under the separate social security scheme, with its inbuilt rights of . .
Cited – Regina v Chief National Insurance Commissioner Ex Parte Connor QBD 1981
The court was asked whether the rule against forfeiture applied so as to disentitle an applicant from receiving a widow’s allowance when she had killed her husband with a knife. She had been held guilty of manslaughter but simply placed on . .
Cited – Regina v Registrar General, ex parte Smith CA 1991
The applicant was detained in Broadmoor, having been convicted of murder in 1977 and of manslaughter in 1980. He suffered from serious mental instability and psychosis The second killing was of a fellow prisoner whom he believed to be his adoptive . .
Cited – Epping Forest District Council v Philcox CA 13-Apr-2000
Where an activity had been continuing without planning permission for 10 years it was no obstacle to obtaining a certificate of lawful use that the activity had been illegal because it had been carried out without a waste management licence. A . .
Cited – Fidler v Secretary of State for Communities and Local Government and Reigate and Banstead Borough Council Admn 3-Feb-2010
The landowner had concealed his new building (a mock Tudor castle) under straw bales 40′ high, and now appealed against dismissal of his challenge to enforcement orders. He said that the building had been substantially completed more than four years . .
Part Obiter – Petticoat Lane Rentals Ltd v Secretary of State for the Environment CA 1971
A burnt out site had had a lawful use for a market but was granted a planning permission for a new commercial building. When the building had been constructed the market had carried on, on the ground floor of the building and it was contended that . .
Cited by:
Cited – Prest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
Cited – Manolete Partners Plc v Hastings Borough Council TCC 12-Apr-2013
Application for compensation under s.106 of the Building Act 1984 for compensation as a result of the Council exercising its powers to prevent access to Hastings Pier under s.78 of the 1984 Act.
Held: The court rejected the defence, holding . .
Lists of cited by and citing cases may be incomplete.
Planning
Updated: 10 November 2021; Ref: scu.431826