Worse Off Wednesday – SoS for CLG v. Welwyn Hatfield BC

Last Wednesday (6th April) was commonly known as “Worse Off Wednesday” because it was the date that many of Coalition’s budgetary cuts (including tax and benefit changes) really started to impact on households.

It will probably be remembered as Worse Off Wednesday by Mr and Mrs Beesley too but for entirely different reasons.  On 6th April the Supreme Court handed down judgment in the final episode of the long-running saga of the Beesley’s house/barn.

If you just can’t wait to get your hands on the judgment, you’ll find it here.

For those who have not been paying attention, here’s what’s happened previously:  Mr Beesley sought and obtained a planning permission for a hay barn in the Metropolitan Green Belt.  He built a structure that externally (materially) complied with the permission in that it appeared to be a hay barn.  Internally however it was a dwellinghouse.  The Beesleys occupied the dwellinghouse which was never used (and never intended to be used) as anything other than a dwellinghouse.

Mr Beesley accepted he had deliberately deceived the Council in his application and accepted he had been deceptive towards the Council over an extended period.  He accepted that he had never intended to do anything other than occupy the structure as a dwellinghouse.

A little over four years after occupying the structure Mr Beesley sought a Certificate of Lawfulness for the use of the structure as a dwellinghouse.  The Council refused it.  There then followed…

Beesley appealed and the Inspector granted the Certificate

The Council appealed and the High Court quashed the Certificate

The Secretary of State appealed and the Court of Appeal overturned the High Court, granting the Certificate.

The Council appealed and the Supreme Court overturned the Court of Appeal, refusing the Certificate.

Now that we’ve caught our breath from doing the Beesley hokey-cokey (In!  Out!  In!  Out!  Shake it all about!) let’s examine the reasons for the Supreme Court’s decision.

Lord Mance gave the lead ruling, giving judgment for Welwyn Hatfield Borough Council on both points argued.

1) THE INTERPRETATION OF s171B

The primary basis for the Court’s decision was the interpretation of s171B of the Town and Country Planning Act 1990.  The court ruled that the structure as constructed was a dwellinghouse, not a barn.  Further, the court doubted that the change of use to a single dwellinghouse required under s171B(2) could consist of a simple departure from permitted use without any prior actual use.  So in Beesley’s case because the structure built was a dwellinghouse and had never had any actual use as a barn, there was no change of use – only a single continuing use as a dwellinghouse.

The court ruled that a ‘use’ does not commence on actual use (i.e. a single dwellinghouse use does not commence on the day someone moves in) and that the matter should more properly be looked at in the round.  In Beesley’s case, since there had been no change of use from any previous actual use, the court ruled that although the structure took the benefit of a four year immunity period (under s171B(1)) because there was no change of use under s171B(2), the actual use as a single dwellinghouse by Mr Beesley fell under s171B(3) – the ten year immunity period cast on all other breaches.

This leaves us in a position where those who construct unauthorised dwellings where those structures have no previous actual use have a four year immunity period for the operational development (under s171B(1)) but a ten year period for the use, even if that use is as a single dwellinghouse, under s171B(3).

The sting in the tail for LPAs however is the observation of the court that although this might on the face of it render an anomalous position (a lawful structure with no lawful use), as the court put it “principles of fairness and good governance could, in appropriate circumstances, preclude it from subsequently taking enforcement steps to render the building useless.”

So perhaps LPAs are not so much better off following judgment on Worse Off Wednesday?

2) DISHONESTY

Unsurprisingly perhaps the Supreme Court ruled that, notwithstanding its judgment on the first issue (the interpretation of s171B) the provisions of s171B and s191(A) were not apt to cover a situation where an applicant sought to profit from his deceptive behaviour, even if not identifiably a criminal act.

Intriguingly, after the court had sat in the early part of February 2011, Mr Beesley sought to submit fresh evidence to suggest that in fact he had not acted dishonestly but that perhaps he had inadvertently given the Inspector some kind of inaccurate impression, that somehow the Inspector was mistaken and that Beesley had not said he had acted deceptively and dishonestly…

As the Supreme Court noted there was no credibility whatsoever in Mr Beesley’s new assertions and that what he now sought to say had the distinct ring of implausibility about it.

An attempt perhaps by Mr Beesley to rescue himself from the mire he found himself in (and as discussed in my posts in January and February) regarding his potential criminal liability and consequent financial liability in confiscation proceedings?

Pure coincidence you understand that his criminal liability is pointed out in January and February, then suddenly in February Mr Beesley starts trying to say how he wasn’t dishonest…absolutely not an attempt to ‘head off’ prosecution and confiscation proceedings…oh no…

Any questions?  Drop me a line.

Scott