A LEADING LAW FIRM WITH A APPROACH

Transcription

1 A LEADING LAW FIRM WITH A APPROACH RTPI EVENT 2011: PLANNING LAW NEW DIRECTIONS Enforcement Update Stephen Dagg Robert Fidler v. (1) Secretary of State for Communities Section 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. 1

2 Robert Fidler v. (1) Secretary of State for Communities First House constructed (Early 1990s) Certificate of Lawfulness Granted for First House (1996) Application to convert buildings on site (1998) Planning Permission to convert buildings on site (2000) Second House is built (2000) Enforcement Notice served on Second House (2001) Application for Retrospective Planning Permission in relation to Second House (2001) Retrospective Planning Permission refused by Council. Appeal of refusal of Retrospective Planning Permission. Robert Fidler v. (1) Secretary of State for Communities Timeline Construction of the building began (2001) Occupation of building (2002) Removal of Hay Bales (2006) Enforcement Notice (2007) Inspector s decision (May 2008) Robert Fidler v. (1) Secretary of State for Communities Inspector s Decision (paragraph 169) It was never Mr Fidler s intention to build a house which remained encased within the walls of straw covered in sheeting. It was always his intention to remove the straw, thus revealing his edifice 2

3 Robert Fidler v. (1) Secretary of State for Communities Inspector s Decision (paragraph 170) As a matter of fact and degree, I therefore find that the straw bales were part of the totality of the operations and that it was necessary for them to be removed before the point of substantial completion was reached. The matter of substance is not that the bales hid the dwelling (although they certainly did) but that they formed part of the totality of the operations in the holistic sense accorded by the authority in Sage. Alan Frank Sage v (1) Secretary of State for the Environment, Transport and the Regions and (2) Maidstone Borough Council [2003] UKHL 22 Robert Fidler v. (1) Secretary of State for Communities Judgment of Lord Hope in Sage v Secretary of State for the Environment, Transport and the Regions and others [2003] UKHL 22 it makes better sense of the legislation as a whole to adopt the holistic approach regard should be had to the totality of the operations which the person originally contemplated and intended to carry out. if it is shown that he [the developer] has stopped short of what he contemplated and intended when he began the development, the building as it stands can properly be treated as an uncompleted building against which the fouryear period has not yet begun to run. 3

4 Robert Fidler v. (1) Secretary of State for Communities Reigate and Banstead Borough Council s Website We did not initiate the High Court Case. Mr Fidler went there to challenge the 2008 decision of a planning inspector appointed by the Secretary of State for Communities and Local Government. The Secretary of State was the defendant in the Court Case. Robert Fidler v. (1) Secretary of State for Communities Reigate and Banstead Borough Council s Website As Mr Fidler had not applied for planning permission and had not sought certification that the building was lawful, the only remaining options for the Council, once they knew about the house, were to either serve an enforcement notice or do nothing. We rejected the do nothing option and served the notice because the house is contrary to national, regional and local planning policies designed to protect the countryside from unnecessary development. Robert Fidler v. (1) Secretary of State for Communities Building Operations 55. (1A) For the purposes of this Act building operations includes (a) demolition of buildings; (b) rebuilding; (c) structural alterations of or additions to buildings; and (d) other operations normally undertaken by a person carrying on business as a builder. (2) The following operations shall not be taken to involve development (a) the maintenance, improvement or other alteration of any building of works which (i) affect only the interior of the building, or (ii) do not materially affect the external appearance of the building 4

5 Welwyn Hatfield Council v. (1) Secretary of State for Communities and Local Government (2) Alan Beesley [2010] EWCA Civ 26 Welwyn Hatfield Council v. (1) Secretary of State for Communities and Local Government (2) Alan Beesley [2010] EWCA Civ 26 Planning permission for hay barn (2001) Construction of building (2002) Occupation of building (2002) Application for certificate of lawfulness of existing use (2006) Welwyn Hatfield Council v. (1) Secretary of State for Communities and Local Government (2) Alan Beesley [2010] EWCA Civ 26 Judgment of Lord Justice Richards (paragraph 3) 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 the mains electricity, water and drainage and has heating, a waste disposal unit and a domestic telephone line. 5

6 Welwyn Hatfield Council v. (1) Secretary of State for Communities and Local Government (2) Alan Beesley [2010] EWCA Civ 26 Judgment of Lord Justice Mummery (paragraph 38) 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. Welwyn Hatfield Council v. (1) Secretary of State for Communities and Local Government (2) Alan Beesley [2011] UKSC James Findlay QC A person shouldn t benefit from his own wrong. Our case is that the activity that underlies this is fraudulent and together constitutes a criminal offence. The clear purpose of this planning application was to mislead and to provide a cover story for the activity that then occurred with the building. Welwyn Hatfield Council v. (1) Secretary of State for Communities and Local Government (2) Alan Beesley [2010] EWCA Civ 26 Judgment of Lord Justice Mummery (paragraph 43) 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, against a Council deceived by him, that the time limits bar the Council s rights of enforcement of his breaches of planning control? 6

7 Welwyn Hatfield Council v. (1) Secretary of State for Communities and Local Government (2) Alan Beesley [2011] UKSC James Maurici I do not condone or excuse Mr Beesley s conduct. But under the law as it currently stands he was entitled to a certificate; it is our intention to change the law in that regard. Localism Bill Clause 104 Time limits for enforcing concealed breaches of planning control Planning Enforcement Orders. Obtained by application to the Magistrates Court by the local planning authority. Allow a one year window during which planning enforcement action may be taken. Can be applied for whether or not the time limit for enforcement set out in section 171B have been exceeded. Localism Bill Proposed Section 171BC of the Town and Country Planning Act 1990 (1) A magistrates court may make a planning enforcement order in relation to an apparent breach of planning control only if (a) (b) the court is satisfied, on the balance of probabilities, that the actions of a person or persons have resulted in, or contributed to, full or partial concealment of the apparent breach or any of the matters constituting the apparent breach, and the court considers it just to make the order having regard to all the circumstances. 7

8 Localism Bill Proposed Section 171BC of the Town and Country Planning Act 1990 (2) For the purposes of subsection (1), a person s actions are to be taken to include (a) representations made by the person, and (b) inaction on the person s part. Localism Bill Robert Fidler v. (1) Secretary of State for Communities Decision Letter (paragraph 149) 149. Mr Fidler made it quite clear that the construction of this house was undertaken in a clandestine fashion, using a shield of straw bales around it and tarpaulins of plastic sheeting over the top in order to hide its presence during construction. He said that he knew that he had to deceive the Council of its existence until a period of 4 years from the date of substantial completion had occurred as they would not grant planning permission for its construction. Localism Bill Welwyn Hatfield Council v. (1) Secretary of State for Communities and Local Government (2) Alan Beesley [2010] EWCA Civ 26 Judgment of Lord Justice Richards (paragraph 3) 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. 8

9 Welwyn Hatfield Council v. (1) Secretary of State for Communities and Local Government (2) Alan Beesley [2010] EWCA Civ 26 Judgment of Lord Richards (paragraph 28) The certificate applied for by Mr Beesley related, however, the use of the building, not to its construction For the Secretary of State, Miss Davies [contended] that if the construction of a building has become immune from enforcement by virtue of section 171B(1), the 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 this 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 this issue... Welwyn Hatfield Council v. (1) Secretary of State for Communities and Local Government (2) Alan Beesley [2010] EWCA Civ 26 Judgment of Lord Justice Pill (paragraph 49) I too see force in the contention of Miss Davies recited by Lord Justice Richards... 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 by 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 land for the carrying out of any building or other operations on it Welwyn Hatfield Council v. (1) Secretary of State for Communities and Local Government (2) Alan Beesley [2010] EWCA Civ 26 Judgment of Lord Justice Pill (paragraph 49) 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 dwellinghouse can be prevented. I agree with Lord Justice Richards that it is not necessary to decide the point. 9

10 Sumner v. (1) Secretary of State for Communities and Sumner v. (1) Secretary of State for Communities and Inspector s Decision The buildings themselves were immune from enforcement since they were constructed more than 4 years earlier; and The use for vehicle repairs was not immune since the use had not commenced more than 10 years previously. Sumner v. (1) Secretary of State for Communities and Section 75 of the Town and Country Planning Act 1990 (2) 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. (3) If no purpose is so specified, the permission shall be construed as including permission to use the building for the purpose for which it is designed. 10

11 Sumner v. (1) Secretary of State for Communities and Judgment of Mr Justice Collins (paragraph 18) 18. Mr Stinchcombe submits that albeit it [a certificate of lawfulness] is not a planning permission it should be regarded as equivalent, and it would therefore be wholly consistent, and indeed inconsistent with the purpose behind lawfulness, if it did not include permission to use the building for the purposes for which it is designed. Sumner v. (1) Secretary of State for Communities and Judgment of Mr Justice Collins (paragraph 19) 19.Thus he submits that if the intention was at all times that the buildings should be used for the purposes of vehicle repair, then once the operational development in the form of their construction is immune the use should be regarded as lawful for all purposes, even though the section 191 certificate [has] not actually been obtained, because it could be obtained, and therefore the purpose should also be regarded as included, whether one looks upon it as ancillary or otherwise, because that would be consistent with section 75 and that shows the purpose, as it were, behind the statutory provisions. Sumner v. (1) Secretary of State for Communities and Judgment of Mr Justice Collins (paragraph 20) 20. What Mr Stinchcombe, it seems to me, is trying to do is to write into the Act what does not exist, namely that even if there is no certificate and even if there is no planning permission, nonetheless these are all the advantages that he Act provides if you did have a planning permission and there were a lawful use certificate. 11

12 Sumner v. (1) Secretary of State for Communities and Judgment of Mr Justice Collins (paragraph 23) 23. In any event, Mr Stinchcombe cannot use section 191 to indicate what the true construction should be of 171B. Section 191 merely deals with the effect of a certificate of lawful use and when it can be granted. It does nothing to indicate whether or not a particular use is lawful as far as any enforcement is concerned Sumner v. (1) Secretary of State for Communities and Judgment of Mr Justice Collins (paragraphs 24) 24. it seems to me that it is a misuse of language to regard the use for which the building was intended as a use ancillary to the construction of the building. I say this because the Act draws a distinction throughout, between operational development and change of use. Each is regarded as a separate basis for a need for planning permission. It may well be that in a given case the one can truly be said to be ancillary to the other Sumner v. (1) Secretary of State for Communities and Judgment of Mr Justice Collins (paragraphs 24 cont.) 24. Examples are the placing in the building of a spiral staircase in order to facilitate use as an office. Or the placing of hardcore on land in order to facilitate use for the purpose which requires vehicles to be able to stand. That is a true example of what may be regarded as ancillary. In a case such as this, as it seems to me, there are indeed two separate concerns, that is to say the change of use and the development in the form of the operational development by a building operation. 12

13 Sumner v. (1) Secretary of State for Communities and Judgment of Mr Justice Collins (paragraph 28) 28. It is, however, necessary for me to decide the point. I am afraid I am, unlike the two Lord Justices, not at all persuaded that it has any merit. It seems to me that it is clear from section 171B that a distinction is drawn and intended to be drawn between change of use and operational development that is entirely consistent with the approach in the Act. Sumner v. (1) Secretary of State for Communities and Judgment of Mr Justice Collins (paragraph 29) 29.If an individual chooses to erect a building without planning permission intended to be used for a purpose which has no planning permission then, as it seems to me inevitably he runs the risk that he will have to remove the building if enforcement action is taken in time against it, or cease the use equally if enforcement action is taken in time against that use. He cannot be placed in the same position as if he had obtained planning permission; he has not, he has chosen deliberately to flout the law, whether or not he has deceived the Council in any way. As it seems to me, there is no good reason why he should reap the benefit from that. First Secretary of State v. Arun [2006] EWCA Civ 1172 Section 171B(2) of the Town and Country Planning Act 1990 (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. 13

14 First Secretary of State v. Arun [2006] EWCA Civ 1172 Section 171B(2) of the Town and Country Planning Act 1990 (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. First Secretary of State v. Arun [2006] EWCA Civ 1172 Section 171B(1) of the Town and Country Planning Act 1990 (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. Williams v. Herefordshire County Council [2010] EWHC 3617 (Admin) 14

15 Williams v. Herefordshire County Council [2010] EWHC 3617 (Admin) Enforcement Notice 1. Permanently remove the said mobile homes together with the covered walkway area. 2. Remove all associated works including the concrete hard standing and amenity point and restore the land to its condition before the breach took place by reseeding it with grass and such other work as is necessary to return its agricultural land quality to at least that which it formally had. Williams v. Herefordshire County Council [2010] EWHC 3617 (Admin) Section 179(4) of the Town and Country Planning Act 1990 (4) A person who has control of or an interest in the land to which an enforcement notice relates (other than the owner) must not carry on any activity which is required by the notice to cease or cause or permit such an activity to be carried on. Williams v. Herefordshire County Council [2010] EWHC 3617 (Admin) Judgment of Lord Justice Elias (paragraph 15) 15.I agree with that submission. In my judgment the enforcement notice does not say anything about the activity which has been carried on at the site. I can quite see why the authorities thought it unnecessary to spell out any duty to desist from using the home for residential purposes. It required the mobile home to be removed, and since it was only residential use of the site which was forbidden, the duty to remove the mobile home necessarily deals at one and the same time with the unlawful use. 15

16 Williams v. Herefordshire County Council [2010] EWHC 3617 (Admin) Judgment of Lord Justice Elias (paragraph 16) 16.However the obligation to cease living in the home for residential purposes is in principle quite distinct from the obligation to remove it. R (on the application of Stuart Harper) v. (1) Secretary of State for Communities and Local Government (2) East Riding of Yorkshire Council [2010] EWHC 1338 (Admin) R (on the application of Stuart Harper) v. (1) Secretary of State for Communities and Local Government (2) East Riding of Yorkshire Council [2010] EWHC 1338 (Admin) Schedule 2, Part 6, Class A of the Town and County (General Permitted Development) Order 1995 A. The carrying out on agricultural land comprised in an agricultural unit of 5 hectares or more in area of (a) works for the erection, extension or alteration of a building; or (b) any excavation or engineering operations, which are reasonably necessary for the purposes of agriculture within that unit. 16

17 R (on the application of Stuart Harper) v. (1) Secretary of State for Communities and Local Government (2) East Riding of Yorkshire Council [2010] EWHC 1338 (Admin) Schedule 2, Part 6, Condition A1 of the Town and County (General Permitted Development) Order 1995 A1 Development is not permitted by Class A if (c) it would involve the provision of a building, structure or works not designed for agricultural purposes; R (on the application of Stuart Harper) v. (1) Secretary of State for Communities and Local Government (2) East Riding of Yorkshire Council [2010] EWHC 1338 (Admin) Inspector s Decision (paragraph 7) Whether or not the appellant intends to construct that building in a similar manner to the appeal building, it would be required to be designed for agricultural purposes. In any event, I do not consider that this justifies the retention of the appeal building, which appears as an intrusive development in the open countryside. R (on the application of Stuart Harper) v. (1) Secretary of State for Communities and Local Government (2) East Riding of Yorkshire Council [2010] EWHC 1338 (Admin) Judgment of His Honour Judge Langan QC (paragraph 17) 17. he maintains that he is being put in a position in which he would be forced to pull down the existing building and thereafter re-erect it almost in the same position, using the same materials The submission in my judgment sidesteps, not by design I am sure, fundamental principles which are apparent both from the decision of the Inspector on the enforcement notice and from the decision of Ms Zoe Hill on the current appeal. 17

18 R (on the application of Stuart Harper) v. (1) Secretary of State for Communities and Local Government (2) East Riding of Yorkshire Council [2010] EWHC 1338 (Admin) Judgment of His Honour Judge Langan QC (paragraph 18) 18. What the claimant is entitled to do under the prior approval which he obtained by default is to erect a building which, first of all, is reasonably necessary for the purposes of agriculture and secondly, to erect a building which is designed for agricultural purposes... R (on the application of Stuart Harper) v. (1) Secretary of State for Communities and Local Government (2) East Riding of Yorkshire Council [2010] EWHC 1338 (Admin) Judgment of His Honour Judge Langan QC (paragraph 18) There must be considerable doubt whether the kind of demolition and re-erection of the kind which I have mentioned would satisfy those requirements. It seems to me likely that they would not. In any event, I do not consider that there was any error in principle on the part of the Inspector when she said that it was not for her in the context of a planning appeal to consider the steps needed to remedy an unauthorised development. 18