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Supreme Court attacks 'deception' of man who built house in barn

11 April 2011

The Supreme Court has unanimously ruled that a man who built a ‘barn’ on greenbelt land is not entitled to planning permission for the three-bedroom house and gym hidden inside it.

In what the court described as “positive deception”, Alan Beesley obtained planning permission for the barn on the condition that it was used only for the storage of hay, straw or other agricultural products.

After four years of living in the ‘barn’, Beesley applied for a certificate of lawfulness under section 171B of the Town and Country Planning Act 1990 on the basis that the council’s four-year limit for enforcement against domestic dwellings had expired.

The Court of Appeal unanimously supported him, with Lord Justice Munby admitting that law-abiding citizens would find the ruling “incomprehensible”.

Delivering the leading judgment in Welwyn Hatfield Council v Secretary of State for Communities and Local Government and another [2011] UKSC 15, Lord Mance said Beesley bought 22 acres of greenbelt land on the edge of Potters Bar in 1999 and two years later obtained planning permission for a barn.

With the aid of his builder father-in-law, Beesley “constructed a building which was to all external appearances the permitted barn, with walls in profiled metal sheeting, a roller-shutter door, two smaller doors and eight roof lights.

“Internally it was a dwelling house with full facilities, including garage, entrance hall, study, lounge, living room, toilet, storeroom, gym and three bedrooms, two of them with en suite bathrooms, and connected to mains electricity, water and drainage and a telephone line.

“On 9 August 2002 Mr Beesley and his wife moved in and there they lived continuously for four years. Welwyn Hatfield Borough Council, the appellant, in whose area the property lies, remained unaware throughout that the building was or was being used as a dwelling house.”

Lord Mance agreed with Mr Justice Collins in the High Court that there had never been any intention to use the building other than as a dwelling house and this meant there had not been a change of use within section 171B.

Lord Mance said it was not necessary to address the council’s secondary argument, that Beesley should not, on public policy grounds, be allowed to profit from his own wrong.

“Whether conduct will on public policy grounds disentitle a person from relying upon an apparently unqualified statutory provision must be considered in context and with regard to any nexus existing between the conduct and the statutory provision.

“Here, the four-year statutory periods must have been conceived as periods during which a planning authority would normally be expected to discover an unlawful building operation or use and after which the general interest in proper planning control should yield and the status quo prevail.

“Positive and deliberately misleading false statements by an owner successfully preventing discovery take the case outside that rationale.”

He agreed with the council that the language of the Act could never have been intended to cover the facts of this case, where there was a “positive deception in the making and obtaining of fraudulent planning applications, which was directly designed to avoid enforcement action within any relevant four-year period and succeeded in doing so”.

He allowed the council’s appeal. Lords Phillips, Walker, Clarke and Lady Hale agreed. Lords Rodger and Brown agreed for their own reasons.

Michael Saminaden, chief executive of Welwyn Hatfield Borough Council, said: “From day one, we have taken the view very strongly that people shouldn’t be able to profit from deceitful and dishonest behaviour.

“Following the judgment, we will now consider what appropriate enforcement action we will take.”

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Landlord & Tenant Local government