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Man who hid house in barn wins planning battle

3 February 2010

A man who admitted deceiving a council by building on green belt land in Hertfordshire a ‘barn’ containing a three-bedroom house and a gym, has won his battle for planning permission at the Court of Appeal.

Lord Justice Mummery said that decent law-abiding citizens would find the unanimous ruling “incomprehensible” but, on the basis of legal arguments, Alan Beesley’s appeal had to be allowed.

Mummery LJ said it was a “surprising outcome” that “a public authority, deceived into granting planning permission by a dishonest planning application, can be required by law to issue an official certificate to the culprit consolidating the fruits of the fraud”.

He went on: “If a public authority behaved in a deceitful way, its planning decisions would rightly be set aside by the court as an unlawful abuse of power.

“If, however, the public authority has been deceived it seems that it can be required, at the end of the requisite four-year period, to provide the person who deceived it with a certificate of lawfulness.”

Giving judgment in Welwyn Hatfield Council v Secretary of State for Communities and Local Government and Beesley [2010] EWCA Civ 26, Mummery LJ said Beesley told the council he proposed to build a new hay barn on the land, that no change of use was required and provision for sewage disposal was not needed.

The council granted planning permission for the proposed building on condition that it should be used only for the storage of hay, straw or other agricultural products.

“Unknown to the council, Mr Beesley always intended to construct on the site a building for use as a single-dwelling house,” Mummery LJ said.

“Externally and consistently with the dishonest scheme the building was disguised to look like a hay barn. Internally it was built and fully fitted out as a single-dwelling house connected to main drainage.

“Building regulations approval was not obtained. Domestic rates were not paid. Mr Beesley never intended to implement and never in fact implemented the planning permission granted by the council, as the building was not a hay barn within the meaning of the permission granted. He never in fact used the building as a hay barn. He only ever used it as a single-dwelling house.”

Mummery LJ said that after four years of living in the ‘barn’, Beesley applied for a certificate of lawfulness for existing use on the grounds that the four-year time limit for enforcement barred legal action against him.

He added that there was nothing in the planning legislation that precluded relying on time limits by reason of false representations.

Lord Justice Richards, who gave the leading judgment, said the court should not adopt a “strained construction” of section 171B of the Town and Country Planning Act 1990 in reaction to the “deliberate deceit” practised by Mr Beesley.

“The outcome should be the same as if, for example, there had been a genuine change of mind in the course of construction of a building for which planning permission had been obtained in good faith.

“The question is whether the situation, viewed objectively, is one for which the statute has provided a four-year time limit or a ten-year time limit. If it is considered that there should be a different outcome in a case of dishonesty or deliberate concealment, it is for Parliament to amend the legislation accordingly.”

In a related ruling at the High Court today, a Surrey farmer who hid a ‘castle’ behind a stack of straw bales lost his challenge against Reigate and Banstead Council.

The farmer removed the bales and tarpaulin after the four-year limit had expired, but Sir Thayne Forbes, sitting as a deputy High Court judge, ruled that the act of removing them could be regarded as part of building operations.

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Agricultural Local government