In R (on the application of Welwyn Hatfield Council) v Secretary of State for Communities and Local Government the High Court quashed an inspector's decision to grant a certificate of lawfulness of existing use or development.

The facts of the case were somewhat unusual. A landowner obtained planning permission for a hay barn. He constructed a building which externally matched the application, but internally was laid out as a house. The permission included a condition which required that the building should be used for the storage of hay or other agricultural purpose only.

The owner moved into the structure in August 2002 and, after four years, applied for a certificate of lawfulness that the building could be used as a dwelling. The council refused to grant it. During the appeal the owner admitted that he had intended to deceive the council all along, and had always intended that the structure would be a dwelling house.

On appeal, the inspector granted the certificate. The council applied to quash the decision.

A certificate of lawfulness gives immunity from enforcement action where (in these circumstances) the owner can show that he has occupied the building in breach of planning control for a period of four years with no enforcement action being taken by the local planning authority.

Time limits for enforcement action are (briefly) as follows:-

Operational development - 4 years

Material change of use - 10 years (unless for a change of use to a single dwelling) Change of use of a building to use as a single dwelling house - 4 years

Breach of condition - 10 years.

The court held that the building had not acquired immunity in August 2006 because:

i.the construction of the building was not unlawful – it had planning permission and could have been used as a barn.

ii.there was no change of use of the building to use as a single dwelling house because it had always been used as a dwelling and had always been intended to be so used.

So where does that leave the owner? The dwelling is not immune from enforcement action for breach of the condition restricting the use of the building to the storage of hay etc. The council has until August 2012 to issue an enforcement notice.

However, more interestingly the court suggested that the owner may have committed a criminal offence by obtaining planning permission by deception and that were the dwelling to remain, any proceeds the owner obtained should be removed under the Proceeds of Crime Act 2002.