Welwyn Hatfield Council v Secretary of State for Communities and Local Government & Anor

This case concerns the time limits under section 171B of the Town and Country Planning 1990 (“the 1990 Act”) for enforcement action in respect of breaches of planning control.

In December 2001 Mr Alan Beesley was granted planning permission by Welwyn Hatfield Council for the erection of a hay barn (the development proposed in the planning application and shown on the accompanying plan). The permission was also subject to a condition that “the building hereby permitted shall be used only for the storage of hay, straw or other agricultural products and shall not be used for any commercial or non-agricultural storage purposes”.

Mr Beesley has admitted that he deliberately deceived the council when he applied for planning permission, in that he filled in the application on the basis that the building was to be a hay barn but he always intended to build and reside in it as a dwelling. The building was constructed between January and July 2002 with a steel frame and the external appearance of a barn, but fitted out internally as a dwelling. The external walls have chipboard with fibreglass insulation and are finished internally with fibreglass. Internal walls are of timber and plasterboard. There are a garage/store, entrance hall, study, lounge, living room, kitchen, WC, storeroom, gym and three bedrooms, including two with en suite bathrooms. The building does not have conventional windows, but rooflights and ceiling openings allow natural light to penetrate into all but two rooms. The property is connected to mains electricity, water and drainage and has heating, a waste disposal unit and a domestic telephone line.

Mr Beesley’s case was that he and his wife moved into the property on 9 August 2002 and lived there continuously thereafter. He was evidently careful, however, to avoid the residential use of the building coming to the attention of the council. Building Regulations approval was not sought and there was no record of him on the electoral register.

On 15 August 2006 he applied under section 191 of the 1990 Act for a certificate of lawfulness of existing use, on the basis that the time for enforcement action against use of the building as a dwelling had expired.

The time for enforcement action is governed by sections 171A and 171B of the 1990 Act, which provide in material part as follows:

“171A.(1) For the purposes of this Act –

(a)

carrying out development without the required planning permission; or

(b)

failing to comply with any condition or limitation subject to which planning permission has been granted,

constitutes a breach of planning control.

171B.(1) Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed.

(2)

Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach.

(3)

In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach.”

I should also mention section 55(1), which provides that “except where the context otherwise requires, ‘development’ means ‘the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land’”.

The focus of attention in the council’s consideration of Mr Beesley’s application for a certificate of lawful use was section 171B(2). The council reasoned that only use as a single dwelling house benefited from the four year (as opposed to ten year) time limit for enforcement; the building was not a dwelling house, since its external appearance did not have the features of a dwelling; and the four year limit therefore did not apply. On that basis the council refused a certificate.

Mr Beesley appealed under section 195 of the 1990 Act against the council’s refusal. By a decision dated 8 July 2008 an inspector appointed by the Secretary of State allowed the appeal. He said that the breach of planning control concerned the use of the building as a single dwelling house and that it was clear from section 171B(2) that in all such cases the relevant time limit was four years. He stated the issue as being whether there had been a breach of planning control by the use of the building as a single dwelling house and, if so, whether that breach had continued without material interruption throughout a period exceeding four years before the date of the application for a certificate. He considered it unnecessary to determine whether the building was a dwelling house, and he expressly avoided any determination in respect of its status as a dwelling house. He found, however, that it was capable of being used as a dwelling house and that its actual use as a single dwelling house had commenced more than four years before the date of the application and had continued without material interruption to the date of that application. On that basis he granted a certificate that on 15 August 2006 the use of the building as a dwelling house had become lawful by reason of immunity from enforcement action.

The council applied to the High Court under section 288 of the 1990 Act, challenging the inspector’s decision. The case was heard by Collins J. The council contended first that the inspector’s findings that the building had been used as a single dwelling house for four years were flawed on a variety of grounds. Those arguments were rejected by the judge and are not pursued before us.

But the council also took a new point, namely that there could be no “change of use” to use as a single dwelling house because the building had no use prior to its occupation for residential use, and thus section 171B(2) could not apply. Collins J accepted that contention. He held, in summary, that the construction of the building was lawful and not in breach of planning control; and, since there was never any intention to use it otherwise than as a dwelling house and it had never been used for any purpose other than a dwelling house, there had been no change of use (“it was constructed for that use and has ever since been used in such a way”). Accordingly the four year time limit did not apply.

Whilst the judge arrived at that conclusion as a matter of construction of section 171B and after consideration of the cases cited to him, he had serious concerns about the deceit practised by Mr Beesley and was understandably relieved to arrive at a conclusion that would prevent Mr Beesley from profiting from that deceit. He said this (at para 36):

“I am bound to say that seems to me a conclusion which accords with not only the merits of this case but prevents a particular sort of fraud being perpetrated because otherwise Mr Beesley would have got away with a plot to breach the planning laws and to obtain a dwelling house in breach of the Green Belt policies and a development that he would never have been able to achieve if he had gone about things in an honest fashion.”

He also raised the question whether a criminal offence had been committed in obtaining a planning permission by deception.

Both the Secretary of State and Mr Beesley have appealed against the judge’s order, in each case with permission granted by Elias LJ. The arguments presented by Miss Davies for the Secretary of State and by Mr Booth for Mr Beesley are to broadly the same effect, albeit with differences of emphasis, and I can treat them together. There are two main aspects to the case advanced by them:

Mr Beglan, for the council, meets that case in this way. He submits that (i) section 171B(1) is not relevant, since it is concerned with operational development whereas the certificate sought relates to use of the building; (ii) the judge was right to find that there had been no change of use of the building and that section 171B(2) did not therefore apply; but (iii) it would be open to the council to enforce against the use of the building on the ground that it constitutes a material change of use of the land, which is subject to a ten year time limit under section 171B(3). The council’s argument based on material change of use of the land is a new one, not taken before the inspector or, at least in so clear a form, before Collins J.

Before I consider those submissions, I should refer to the policy behind section 171B. In that connection we had cited to us First Secretary of State v Arun [2006] EWCA Civ 1172, [2007] 1 WLR 523. The facts of that case were that planning permission had been granted for an extension to a dwelling house to provide accommodation for a dependent relative. A condition was attached that if the extension was vacated it was to be used only for purposes incidental to the main dwelling house. In breach of that condition, however, the extension was used as a separate dwelling. The court held that the expression “breach of planning control” in section 171B(2) applied both to development without planning permission and to failure to comply with a condition subject to which planning permission was granted, and that the four year time limit therefore applied to a change of use (whether material or not) to use as a single dwelling house in breach of condition. In reaching that conclusion the court relied heavily on the legislative history.

Auld LJ, giving the leading judgment, commented that “the rationale for the section containing different periods of limitation according to the nature of the breach of planning control was to impose a shorter period, four years, where it was considered that a longer period could cause serious loss and/or hardship in the event of enforcement proceedings long after the event, including in the case of homeowners the loss of their homes, and ten years for any other breach of planning control” (para 5). At para 18 he quoted the following passage from the February 1989 report by Robert Carnwath QC (as he then was), Enforcing Planning Control, as summarising the effect of the law as it stood at that date:

“In four specific cases, there is immunity four years after the breach (all operations; breaches of conditions ‘relating to the carrying out of operations’; changes of use to single dwellings; and breaches of a condition prohibiting such a change) …. The logic behind these exclusions is not entirely clear. Special protection was no doubt thought desirable for people’s homes. In the case of operations, the governing considerations presumably were the relative ease of detection, the potential costs involved in reinstating the land, and the need to provide certainty for potential purchasers.”

The report recommended that the four year immunity be retained for all those categories save for breaches of conditions relating to operational development. As Auld LJ explained at para 21, the recommendation was implemented by the Planning and Compensation Act 1991, which introduced sections 171A and 171B into the amended 1990 Act, effecting in simpler form (and save for the omission of breaches of conditions relating to operational development) the relevant provisions of the predecessor legislation. A similar analysis of the history is to be found in the judgment of Carnwath LJ (as he had by then become) at paras 38-48.

It is clear from the legislative history as examined in both judgments that a deliberate and informed decision was taken to retain a four year limitation period for the categories of case now to be found in section 171B(1) and (2), and that one of the policy reasons was the desirability of affording special protection for people’s homes.

In agreeing in Arun that any enforcement action had to be taken within the four year time limit in section 171B(2), Sedley LJ said this (at para 36):

“I can entirely understand the local planning authority’s sense of frustration about this. Their planning department is not a police station, and the discovery that a person such as Mrs Brown has – not to put too fine a point on it – cheated on a conditional grant of permission, to detriment of her neighbours and of planning control, may well be a matter of time and of chance. The ordinary ten-year period might well have been thought reasonable for such cases, but – in circumstances which Carnwath LJ’s judgment illuminates – it is not what Parliament decided to provide.”

It seems to me that a similarly restrained approach is called for in the present case. The court should not be tempted to adopt a strained construction of the section in reaction to the deliberate deceit practised by Mr Beesley or out of concern for the difficulties that such conduct creates for local planning authorities in enforcing planning control. 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.

That brings me back to the ways in which the case for the appellants is put. The first argument, as I have said, is that what was erected was not a hay barn but a dwelling house and that this was not in accordance with the planning permission: in terms of section 171B(1), the erection of something other than a hay barn constituted the carrying out of building operations without planning permission, so that the four year time limit applied. The inspector did not think it necessary to make a finding on this issue.

In support of their argument, the appellants referred the court to Sage v Secretary of State for the Environment, Transport and the Regions [2003] UKHL 22, [2003] 2 All ER 689, a case under section 171B(1). The local planning authority in that case had served an enforcement notice on the ground that the claimant was in breach of planning control in partially erecting a dwelling house. The claimant contended that the notice had been served outside the four year time limit, on the basis that “the date on which the operations were substantially completed” within the meaning of the subsection was the date after which the building work remaining to be done would no longer itself involve a breach of planning control because, if taken on its own, it would not require planning permission. The House of Lords rejected that contention, holding that a holistic approach should be adopted and that regard should be had to the totality of the operations which the person originally contemplated and intended to carry out (in that case the creation of a dwelling house). The particular issue was different from that arising in the present case, but certain aspects of the analysis are pertinent.

Lord Hobhouse of Woodborough, giving the leading judgment, said that there could be no doubt that the underlying purpose of section 171B(1) was “to introduce a single easily-applied limitation period for operations” (para 10). In relation to one of the issues before the inspector, as to whether the building in question was an agricultural building which had not in the circumstances required planning permission at all, Lord Hobhouse observed:

“15.

The inspector rightly did not investigate the intentions of Mr Sage at various stages in the history nor the uses he had made of the structure from time to time. The character and purpose of a structure falls to be assessed by examining its physical and design features. The relevance of the assessment is to determine whether or not the building operation is one requiring planning permission. The actual use made of the building does not alter the answer to be given. Keeping a pig in the sitting-room or hens in the kitchen does not turn a dwelling house into an agricultural building even if the humans move out. Permission for a change of use may have to be applied for but that would be a separate question ….”

He agreed with the inspector’s conclusion that having regard to its layout and appearance the building was not an agricultural building but was best described as a dwelling house in course of construction.

Later in his speech, when considering the central issue in the case, Lord Hobhouse stated:

“23.

When an application for planning consent is made for permission for a single operation, it is made in respect of the whole of the building operation. There are two reasons for this. The first is the practical one that an application for permission partially to erect a building would, save in exceptional circumstances, fail. The second is that the concept of final permission requires a fully detailed building of a certain character, not a structure which is incomplete. This is one of the differences between an outline permission and a final permission …. As counsel for Mr Sage accepted, if a building operation is not carried out, both externally and internally, fully in accordance with the permission, the whole operation is unlawful. She contrasted that with a case where the building has been completed but is then altered or improved. This demonstrates the fallacy in Mr Sage’s case. He comes into the first category not the second.”

Lord Scott of Foscote, whilst in general agreement with Lord Hobhouse, went further and questioned whether the building in the case was in fact an uncompleted dwelling house. He said that the classification of a building for planning purposes can change if the use to which the building is put changes; and the classification of a building in course of construction can also be changed by use, or by intentions for future use, of the uncompleted building inconsistent with its original classification. He gave the following example:

“39.

For example, under the Town and Country Planning General Development Order 1988 …, planning permission is in general not necessary for the erection of a building which is reasonably necessary for the purposes of agriculture. A farmer who commenced the construction of such a building would not, by doing so, be in breach of planning control. But if, before the building operations were complete, his intentions changed and he began to install a bathroom and other features indicative of a dwelling, the operations would be in breach of planning control ….”

The passages in Sage that I have quoted have a direct bearing on the present case. Looked at as a whole, the physical and design features of what was built by Mr Beesley were those of a dwelling house, not a hay barn. Its character and purpose, and its proper classification for planning purposes, were those of a dwelling house. Yet the planning permission was for the erection of a hay barn. If one asks whether the building operation carried out was, both externally and internally, fully in accordance with the planning permission, the answer is clearly “no”: what was created internally was not on any sensible view a hay barn. The internal fitting out of the building with the rooms and features of a dwelling house meant that it was built in breach of planning control.

It follows that the construction of the building fell within section 171B(1) and that the four year time limit under that subsection applied. Since, on the inspector’s findings, the building had been completed more than four years before Mr Beesley applied for a certificate, it was too late for the council to take enforcement action against the operational development constituted by the construction of the building.

The certificate applied for by Mr Beesley related, however, to the use of the building, not to its construction. For the council, Mr Beglan submitted that section 171B(1) is simply irrelevant to the question of use. For the Secretary of State, Miss Davies countered with the contention that if the construction of a building has become immune from enforcement by virtue of section 171B(1), use of the building for the purpose for which it was designed must also be lawful: otherwise the legislation would make no sense. I see some attraction to that contention, but I am concerned that the relationship between operational development and use was not fully explored before us and I prefer not to express a conclusion on the issue because, for reasons to which I now turn, I take the view that section 171B(2) provides immunity for the use of the building in this case and no decision is therefore needed on the outstanding issue under subsection (1).

The appellants submit that the case falls within section 171B(2) because there was a breach of planning control consisting in a change of use of the building to use as a single dwelling house. The planning permission was for the erection of a hay barn and was conditional on the building being used for the storage of hay, straw and other agricultural products. Section 75(2) and (3) of the 1990 Act provide that where planning permission is granted for the erection of a building, the grant of permission may specify the purposes for which the building may be used, and if no purpose is specified the permission shall be construed as including permission to use the building for the purpose for which it is designed. In this case, whether one looks at what was implicit in the grant of permission for a hay barn or at the express terms of the condition as to use, it is plain that the permitted use of the building was for agricultural storage. Mr Beesley, however, did not use the building for agricultural storage. He used it as a dwelling house. That was a different use from the permitted use.

Up to that point there is no difficulty in the argument. Collins J found, however, that since there was never any intention to use the building otherwise than as a dwelling house, and since it had never been used in fact for any other purpose than a dwelling house, there had been no change of use of the building. The council relies strongly on that reasoning. Mr Beglan submitted that the building had only one use, namely that of a dwelling house, from the time of its completion and that there could not therefore have been a change of use of the building. Use of the building for residential purposes did constitute a material change of use of the land (or very probably did so – the inspector made no finding of fact as to the prior use of the land); but section 171B(2) is deliberately limited to change of use of a building, and if there was a material change of use of the land but not of the building the situation fell within section 171B(3) and was subject to the ten year time limit for enforcement provided for by that subsection.

I do not accept the council’s submissions on this issue, and I respectfully take a different view on the issue from that taken by Collins J below. The building in question was permitted to be used only for agricultural storage. In those circumstances, as it seems to me, its use as a single dwelling house is properly to be regarded, for the purposes of section 171B(2), as constituting a change of use in breach of planning control. I do not think that the application of the subsection can depend upon establishing actual use for agricultural storage for a period, however short, prior to the residential use: use of the building for a purpose other than the permitted use is sufficient. An alternative way of looking at it, but with the same result, is that in the short period between completion of the building and its residential occupation the building had no use; and the change from no use to use as a single dwelling house constituted a change of use to which the subsection applied. A finding that the situation falls within section 171B(2) and is subject to the four year time limit provided for by that subsection accords with the statutory policy of affording special protection for people’s homes. It also avoids an artificiality, as I consider it to be, in the distinction that the council draws in this context between use of the building and use of the land.

If, as I have found, the situation falls within section 171B(2), the council’s reliance on section 171B(3) must fail. The plain legislative intention is that, once the four year time limit is found to apply, it displaces the ten year time limit even if the situation could be analysed by another route as one to which the longer time limit also applied. I did not understand Mr Beglan to argue otherwise.

I wish, however, to say a little more about the case advanced by the council under section 171B(3). I have explained that the case depended upon the proposition that use of the building as a dwelling did not constitute a change of use of the building but did constitute a material change of use of the land. Mr Beglan submitted that this provided a basis upon which the council could enforce against the use of the building, which would be sufficient to disentitle Mr Beesley to the certificate for which he applied. But Mr Beglan’s argument went further than that. He submitted, in reliance on Murfitt v Secretary of State for the Environment (1980) 40 P&CR 254, that an enforcement notice based on a material change of use of the land could require not only the cessation of the residential use of the building but also the removal of the building itself, even though the construction of the building was immune from direct enforcement action by virtue of section 171B(1).

I am very doubtful about that elaboration of the council’s argument. Murfitt was a very different case, in which there had been a material change of use of land to use for the parking of heavy goods vehicles in connection with a haulage business, and the enforcement notice required the cessation of that use and the removal of hardcore that had been placed on site for the purpose of parking the vehicles. In rejecting a submission that the placing of the hardcore was operational development immune from enforcement action by reason of the four year time limit, the Court of Appeal plainly accepted that the hardcore was so integral to the use of the site for the parking of vehicles that it could not be considered separately from the use, or that it was properly to be regarded as ancillary to the use being enforced against. I do not think that similar reasoning can be applied to the building in question here, and I would be reluctant in any event to accept that an enforcement notice directed against use of the land could properly require removal of a building that enjoys animmunity from enforcement by virtue of section 171B(1). But it is unnecessary for me to say anything more on the point, both because of my finding that the council’s basic case under section 171B(3) must fail and because Mr Beglan made clear that the council would wish to enforce against the residential use of the building even if it could not secure removal of the building itself.

In conclusion, for the reasons I have given, I take the view that in this case there was a breach of planning control consisting in the change of use of the building to use as a single dwelling house, within section 171B(2). On that basis a four year time limit applied and Mr Beesley was entitled to the certificate of lawfulness of existing use for which he had applied.

I would therefore allow this appeal and restore the inspector’s decision.

If my analysis is correct, the lesson for local planning authorities is clear. When checking whether a building has been built in accordance with planning permission and is being used in accordance with the permitted use, they need to look carefully at the inside of the building and not just at the exterior. External appearances can be highly misleading, as this case shows, and authorities need to be alert to the possibility of deception. The legislation in its existing form is open to abuse. Whether it should be amended so as to prevent dishonest advantage being taken of the shorter time limit under section 171B(1) and (2) is, as I have said, a matter for Parliament.

I have had the benefit of reading in draft the judgment of Mummery LJ. For my part I doubt whether, under the legislation as it stands, the false representations made in Mr Beesley's application for planning permission, reprehensible though they were, could have the effect of disentitling him to a certificate of lawfulness of existing use. Anyone can apply for a certificate under section 191, and if a certificate is granted it affects the status of the land and can be relied on by third parties. It seems to me that the question whether the statutory conditions for grant of a certificate are fulfilled must be given the same answer whoever is making the application: entitlement depends on objectively ascertainable facts concerning the building/land and its use rather than upon the personal position or conduct of the particular applicant. It is far from obvious how dishonesty by Mr Beesley in his application for planning permission could be relied on to defeat a third party's application for a certificate; and if a third party would be entitled to a certificate, I cannot see why Mr Beesley should not also be entitled to one. It may also be relevant that the legislation does make specific provision in respect of dishonesty in an application for the certificate itself: section 193(7) confers a power to revoke a certificate if on the application for a certificate a statement was made, or document used, which was false in a material particular, or material information was withheld; and section 194 makes it a criminal offence to provide false or misleading information, etc, for the purpose of procuring a decision on an application for a certificate. There is, however, no suggestion that Mr Beesley's dishonesty extended to his application for the certificate or his evidence in support. I mention those points in reaction to the issues canvassed by Mummery LJ. I agree with him, however, that since they were not raised or explored in argument at any stage of this litigation it would not be right to decide this appeal by reference to them.

I agree with Richards LJ that, on the basis of the legal arguments advanced in this court, the appeal by the Secretary of State should be allowed.

It is a surprising outcome which decent law-abiding citizens will find incomprehensible: 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. 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.

In his applications for planning permission Mr Beesley made the following representations to the Council: he proposed to build a new hay barn on land at Cooper’s Lane Road, Northaw; that was the purpose for which the land and the buildings were to be used; the proposal did not involve any change of use of land; and provision for sewage disposal was “N/A” (not applicable) to the hay barn. The Council granted planning permission for the proposed building on the express condition that it should be used only for the storage of hay, straw or other agricultural products. As the site was in the Metropolitan Green Belt, only agricultural use was appropriate.

The representations were not true. They were intended to deceive and did deceive the Council into granting planning permission for a new hay barn on the site. Unknown to the Council Mr Beesley always intended to construct on the site a building for use as a single dwelling house. 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.

After 4 years of living in his pretend hay barn with its concealed living quarters and without storing any hay, straw or other agricultural products in it, Mr Beesley applied to the Council he had duped for a certificate of lawfulness for an existing use i.e. unlawful occupation as a single dwelling house for 4 years. The basis of the application was that that use was a breach of planning control dating from 9 August 2002 when he moved in and that the 4 year time limit for enforcement barred legal action by the Council against him.

The Council’s refusal of his application does not surprise me. Richards LJ has set out the history of the subsequent proceedings before the inspector and Collins J, the relevant statutory provisions and the case-law and his conclusions. In the matter of the construction of section 171A.(1) and section 171B.(1),(2) and (3) I am driven to the same conclusions as Richards LJ. There has been a breach of planning control in failing to comply with the condition or limitation subject to which planning permission had been granted; that breach consisted in the change of use of the building from permitted use as a hay barn to use as a single dwelling house; no enforcement action could be taken by the time that the true situation was disclosed, as more than four years had passed from the date of the breach of planning control.

I am puzzled by the total absence of argument from the Council (or the Secretary of State) about the effect of Mr Beesley’s reprehensible conduct in obtaining planning permission by deception and in failing to implement it. Does such conduct not have any effect on his right to assert, as against the Council deceived by him, that the time limits in section 171B.(1) and (2) bar the Council’s rights of enforcement of his breaches of planning control?

We have not been referred to anything in the planning legislation that expressly precludes Mr Beesley from relying on the time limits by reason of his false representations, so I assume that there is no such provision. There are, however, areas of fundamental public policy, general principles of law and justice and established legal doctrines inhabiting the vast legal world outside the Planning Acts. In appropriate cases, the policies, principles and doctrines in the larger legal world can have an impact on the interpretation and operation of legislation, unless Parliament has expressly or impliedly excluded their application.

I recognise that, while aiming to protect the interests of potential purchasers of property and to eliminate the hardship of enforcement proceedings long after the event, the limitation provisions in question confer benefits on people who are in breach of planning control. However, it is very difficult to believe that Parliament could have intended that the certificate procedure in section 171 should be available to someone who has dishonestly undermined the legislation by obtaining a planning permission which would never have been granted if the Council had been told the truth.

It is, in general, legitimate for the courts to interpret and apply legislation, if possible, in harmony with fundamental aspects of public policy and principles of law and justice. Take just a few examples. As a matter of public policy the courts have not allowed statutory provisions to be used to accomplish or cover fraud, or, as it is put in the cases going back 300 years, as “an engine of fraud.” As to the effects of illegality, the courts will not, in general, enforce rights with the object of deceiving public authorities in their functions, such as the collection of tax. There is a general principle that man should not be entitled to rely on illegal conduct to make a claim, or be allowed to profit from his own wrong; there is the maxim that “fraud unravels everything”; and there is the doctrine, which has been applied to interests in and uses of land, that a person who has made representations upon which another has acted may, as against the person to whom the representations were made, be bound by his representations and estopped from asserting the contrary.

None of those matters has been raised or explored in argument at any stage in this litigation. It would not be right to decide this appeal on the basis of arguments that have not been made or to express views on them which are unnecessary for the disposal of this appeal. The arguments may be raised in a future case. The points may be relevant if and when amendments to the legislation are considered

I agree that the appeal should be allowed for the reasons given by Richards LJ. I agree with his penetrating analysis of the legislative scheme. Immunity for the use of the building is provided by section 171B(2) of the Town & Country Planning Act 1990 (“the 1990 Act”), as amended.

I too see force in the contention of Miss Davies recited by Richards LJ at paragraph 26. However, a distinction is maintained in section 171B between building and other operations on the one hand and a change of use on the other. That is also maintained in the interpretation section in the 1990 Act, section 336(1), in which it is stated that “use” in relation to land does not include the use of the land for the carrying out of any building or other operations on it. I would leave over the argument that, while enforcement proceedings cannot be taken against the dwelling house as a building because of section 171B(1), its use as a dwelling house can be prevented. I agree with Richards LJ that it is not necessary to decide the point.

In his judgment, Mummery LJ refers powerfully to “fundamental aspects of public policy and principles of law and justice” which inhabit “the vast legal world outside the Planning Acts”. Respectfully, I acknowledge the force of his strictures. However, while I am not comfortable in the role of an apologist for those Acts, a role to which I do not aspire, the Acts provide a scheme for the control of the development of land by building and other operations and by changes of use. Under the scheme, decisions as to the use being made of land and buildings need to be taken objectively on the facts and, for the purposes of section 171B, I see no place for analysis of the morality of a particular occupier.

In Westminster City Council v Great Portland Estates Plc [1985] AC 661, Lord Scarman, stated at page 669G:

“In the course of his judgment, with which the other members of the court agreed, Lord Parker C.J. said, at p. 491, [East Barnet Urban District Council v British Transport Commission [1962] 2 QB 484] that when considering whether there has been a change of use ‘what is really to be considered is the character of the use of the land, not the particular purpose of a particular occupier’. These words have rightly been recognised as extending beyond the issue of change of use: they are accepted as a statement of general principle in the planning law.”

Lord Scarman did accept, at page 670E-G, a limitation upon that statement:

“Personal circumstances of an occupier, personal hardship, the difficulties of businesses which are of value to the character of a community are not to be ignored in the administration of planning control. It would be inhuman pedantry to exclude from the control of our environment the human factor. The human factor is always present, of course, indirectly as the background to the consideration of the character of land use. It can, however, and sometimes should be given direct effect as an exceptional or special circumstances. But such circumstances, when they arise, fall to be considered not as a general rule but as exceptions to a general rule to be met in special cases. If a planning authority is to give effect to them, a specific case has to be made and the planning authority must give reasons for accepting it.”

A broad view of what are “material considerations” may sometimes be permissible when planning decisions are taken (e.g. R v Westminster City Council Ex parte Monahan [1990] 1 QB 87). However, Lord Scarman does not appear to me to have in mind in that paragraph a power in local planning authorities to override section 171B for misbehaviour.

Richards LJ has considered, at paragraphs 15 and 16, the background to section 171B. In his report in 1989, Robert Carnwath QC (as he then was), when reviewing the existing law, stated that “special protection was no doubt thought desirable for people’s homes”. The “need to provide certainty for potential purchasers” was also recognised. These factors provide the background to section 171B and to the requirement to construe the section in the manner stated by Richards LJ. If exceptions to prevent someone benefiting from blatant deceptions such as those practised by Mr Beesley in this case are to be devised, it would best be done through the statutory scheme, in my view. On the present scheme, Mr Beesley is entitled to a certificate of lawful use.

I add a further comment. The inspector did not expressly find that the building was a dwelling house, confining himself to a finding that “the building is capable of being used as a dwelling house”. That was sufficient to justify the conclusion he reached but, in my view, on the facts found by him and applying the principle stated by Lord Hobhouse in Sage v Secretary of State for the Environment, Transport and the Regions [2003] 1WLR 983, at paragraph 15, the building plainly was a dwelling house. “The character and purpose of a structure falls to be assessed by examining its physical and design features” (cited by Richards LJ at paragraph 21).

Part VII of the 1990 Act confers extensive powers on local planning authorities to take enforcement action in respect of breaches of planning control. The ruse practised by the applicant in this case was such that the breach may not have been readily detectable. It was practised not in obtaining the certificate of lawful use but in the duplicity and design ingenuity deployed at an earlier stage. I am conscious of the many demands upon the resources of local planning authorities but there are ways in which they can protect their position and that of those they represent. Some inspection of buildings, internal as well as external, for which planning permission has been granted, would appear to be appropriate on or before completion of the building. A power to require information is provided (section 171C) and rights of entry (sections 196A and 196B).

Moreover, Mr Beesley was able to connect what purported to be a barn with mains electricity, water and drainage and a domestic telephone line. Though the question has not been investigated in detail, on the face of it, it appears surprising that the local planning authority did not become aware of these connections with mains services.