"CHEATERS NEVER PROSPER" No Immunity from enforcement by deceit

In a recent case (R (on the application of Welwyn Hatfield Council) v Secretary of State for Communities and Local Government and another [2009] EWHC 966 (Admin)), the Court of Appeal quashed an Inspector's decision to grant a Certificate of Lawful Existing Use or Development.

Pursuant to a grant of planning permission, the owner constructed a hay barn but internally fitted it out for occupation as a dwelling. The landowner and his wife, in order to take advantage of the four year rule, lived in the building for four years before applying for a Certificate. The owner had always intended to occupy the hay barn as a dwelling, this having been confirmed by him to the Inspector.

The Town and Country Planning Act 1990 does not contain provisions relating to deceit or fraud regarding the use of land, however, the Court of Appeal held that the development had not acquired immunity from planning enforcement action under sections 171B(1) or (2) of the Town and Country Planning Act 1990 as:

• The construction of the building was not in breach of planning, as the building could have been used as a barn.
• As a matter of fact, there had been no change of use, as the landowner had always used (and had always intended to use as confirmed in his evidence) the building as a dwelling.

The case neatly illustrates a failed attempt to exploit the four year rule by concealing the actual use of a property. Those considering an application for a Certificate of Lawful Existing Use or Development should be mindful of this case, and seek planning advice before doing so.

For free initial advice on any planning matter, please contact us at planninghelpline@zydalaw.com or by telephone on 01270 620227.