Planning case update
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PLANNING - CASE UPDATE REAL ESTATE www.thrings.com Secretary of State for Communities and Local Government and another v Welwyn Hatfield Borough Council [2011] EWCA Civ 26 This case will be of interest to local planning authorities (‘LPAs’) and developers alike, and provides a steer on how deceitful applications will be dealt with. The case seems to echo the principles which underpin the introduction of “Planning Enforcement Orders” in the Localism Bill. These Orders, made by Magistrates’ Courts, will allow LPAs to take enforcement action within a specified time period, disregarding the four and ten year immunity periods, where, on the balance of probability, there has been full or partial concealment of an apparent breach of planning control. Facts The Supreme Court handed down its long-awaited judgment on 6 th April 2011. By way of background, in 2001 Mr Beesley had obtained planning permission for a hay barn for grazing and haymaking on land in the Green Belt. In 2002, he constructed a building which appeared to be the permitted barn but, internally, was a dwelling with garage, living room, study, bedrooms, bathrooms and gym. He moved in with his wife and, after four years, applied for a certificate of lawful use under Section 171B(2) of the Town and Country Planning Act 1990. This sets out that “where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house, no enforcement action may be taken after the end of four years beginning with the date of the breach.” The Certificate was granted. The Council appealed and the High Court quashed the Certificate. The Court of Appeal then upheld the Certificate on appeal and the Council appealed to the Supreme Court on two grounds. Firstly, it challenged the Court of Appeal’s decision that there had been a relevant change of use and, secondly, it argued that the principle of public policy that no one should be allowed to profit from his own wrong, meant that Mr Beesley could not rely on s.171B(2). Held The Supreme Court allowed the Council’s appeal. It held that there had been no change of use, as the building which Mr Beesley had constructed was not the permitted barn, it was a dwelling house. There was, therefore, no change of use within s.171B(2). On the second issue, the Court held that Mr Beesley’s dishonest conduct meant he could not rely on s.171B(2) even if it had applied. This was because Mr Beesley had intended to deceive the Council from the outset by his statements in the planning application, and that the deliberately misleading false statements prevented the local planning authority from discovering the unlawful use and taking enforcement action. The Court held that it was unthinkable that Parliament had intended s.171B(2) to operate to permit such an outcome. continued > From day one, we have taken the view very strongly that people shouldn’t be able to profit from deceitful and dishonest behaviour. Michel Saminaden, Chief Executive Welwyn Hatfield Borough Council
Transcript of Planning case update
PLANNING - CASE UPDATE
r E A L E S T A T E
www.thrings.com
Secretary of State for Communities and Local Government and another v Welwyn Hatfield Borough Council [2011] EWCA Civ 26
This case will be of interest to local planning authorities (‘LPAs’) and developers alike, and provides a steer on how deceitful applications will be dealt with. The case seems to echo the principles which underpin the introduction of “Planning Enforcement Orders” in the Localism Bill. These Orders, made by Magistrates’ Courts, will allow LPAs to take enforcement action within a specified time period, disregarding the four and ten year immunity periods, where, on the balance of probability, there has been full or partial concealment of an apparent breach of planning control.
FactsThe Supreme Court handed down its long-awaited judgment on 6th April 2011. By way of background, in 2001 Mr Beesley had obtained planning permission for a hay barn for grazing and haymaking on land in the Green Belt. In 2002, he constructed a building which appeared to be the permitted barn but, internally, was a dwelling with garage, living room, study, bedrooms, bathrooms and gym. He moved in with his wife and, after four years, applied for a certificate of lawful use under Section 171B(2) of the Town and Country Planning Act 1990. This sets out that “where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house, no enforcement action may be taken after the end of four years beginning with the date of the breach.” The Certificate was granted.
The Council appealed and the High Court quashed the Certificate. The Court of Appeal then upheld the Certificate on appeal and the Council appealed to the Supreme Court on two grounds. Firstly, it challenged the Court of Appeal’s decision that there had been a relevant change of use and, secondly, it argued that the principle of public policy that no one should be allowed to profit from his own wrong, meant that Mr Beesley could not rely on s.171B(2).
HeldThe Supreme Court allowed the Council’s appeal. It held that there had been no change of use, as the building which Mr Beesley had constructed was not the permitted barn, it was a dwelling house. There was, therefore, no change of use within s.171B(2). On the second issue, the Court held that Mr Beesley’s dishonest conduct meant he could not rely on s.171B(2) even if it had applied. This was because Mr Beesley had intended to deceive the Council from the outset by his statements in the planning application, and that the deliberately misleading false statements prevented the local planning authority from discovering the unlawful use and taking enforcement action. The Court held that it was unthinkable that Parliament had intended s.171B(2) to operate to permit such an outcome.
continued >
From day one, we have taken the view very strongly that people shouldn’t be able to profit from deceitful and dishonest behaviour. Michel Saminaden, Chief Executive
Welwyn Hatfield Borough Council
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R (Save Britain’s Heritage) v Secretary of State for Communities and Local Government [2011] EWCA Civ 334
This judgment will have an immediate impact on demolition proposals as the demolition of most buildings will now be classed as development. Permitted development rights may apply but an application to the local planning authority will still be required to check whether prior approval of the method of demolition is required. Steve Quartermain has written to all local authorities in England drawing their attention to the case. The letter informs local authorities that they will have to consider applications for prior approval for the extended range of demolition projects in the same way as dwelling houses. Developers will need to consider applying for prior approval in addition to any other consent required for demolition for heritage properties, and also obtain EIA screening opinions where the proposals may have significant effects on the environment.
FactsA planning application was submitted to Lancashire City Council for the redevelopment of the Lancaster Canal Area. The proposals included the demolition of unlisted buildings known as the Brewery. In December 2009, Save Britain’s Heritage (‘SAVE’) was informed that demolition had commenced. SAVE obtained an interim injunction preventing demolition, and commenced Judicial Review proceedings, seeking declarations that:
• The demolition of buildings could fall within the EIA Directive and, therefore, require an EIA to be carried out if it had a significant effect on the environment.
• Parts of the Demolition Directive which exempt the need for planning permission for the demolition of listed buildings, buildings in conservation areas, scheduled monuments, buildings other than dwelling houses and buildings adjoining dwelling houses were unlawful and should not be given effect.
HeldThe challenge was dismissed by the High Court but the Court of Appeal has allowed SAVE’s appeal. In addition, the Secretary of State’s application for permission to appeal to the Supreme Court has been refused. This means that planning permission will now be required for nearly all types of demolition. In addition, an EIA will need to be carried out under the Town and Country Planning (Environmental Impact Assessment) Regulations 1999, if the demolition is likely to have a significant effect on the environment.
For advice or more information, contact:
Alex MaddenAssociate Solicitor
0117 930 [email protected]
Sarah NsouliSolicitor0117 930 [email protected]
This is a crucial judgement which will have far reaching effects on the way that local councils deal with demolitions of all types of building. William Palin, Secretary, SAVE
