The Supreme Court decision is out in the Welwyn Hatfield case. Mr Beesley had applied for planning permission for a barn, but kitted it out as a house and four years later applied for a certificate of lawfulness on the ground that the change of use of a building to a dwellinghouse had occurred over four years previously so was now immune and lawful. The four year period rather than ten years applies just to changes to become a dwellinghouse.
The twist in this case came in the Court of Appeal where Mummery L.J. expressed surprise that the Council had not argued that the deception by Mr Beesley in applying for a barn he always intended to use as a house would stop him from obtaining immunity.
So in the Supreme Court the Council took up this point. There are two principal judgments in the SC, which incidentally sat as a seven judge court, not the usual five, indicating the importance of the issue, and one short one from Lord Rodger on the deception point alone.
Lord Mance held that the four year limitation period did not apply and no CLEUD was available because the relevant sections “could not have been intended to cover the exceptional facts of this case, where there was 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”. Lord Rodger said that to hold otherwise would frustrate the policy and raison d’être of the TCPA 1990, and enforcement action could properly be taken. Lord Brown said he was initially troubled by the argument that illegality could override the limitation period, but ultimately he concluded that Mr Beesley’s scheme was highly dishonest, any law-abiding citizen would be shocked to learn that it could not be enforced against and would be “crowned with success” in the form of the CLEUD. He did however concede that there is no broad principle that no-one guilty of wrongdoing can benefit from the limitation provisions. And he concluded that planning legislation is not incompatible with some application of the Connor principle, that fraud creating a state of affairs which leads to the application of a statutory rule which would not otherwise have applied. But he said that it is only “truly egregious cases such this very one (and perhaps Fidler too) which should be regarded as subject to the Connor principle”.
The problem with this however is where it leaves the innocent purchaser of property which is has a planning permission which has been obtained by fraud. And this is what I have been arguing with DCLG over clause 104 of the Localism Bill which requires only concealment, not fraud or dishonesty. Lord Brown said that he did not accept that clause 104 is needed in the light of the judgments in this case. The way he restricts the case is I preferable to Clause 104 I feel.