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THE BARN THAT WAS REALLY A HOUSE A STORY OF SKULDUGGERY, PLANNING LAW AND THE BAADER-MEINHOF GROUP James Howlett
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[email protected] www.kchgardensquare.co.uk
clear | compelling | approachable
The barn that was really a house: A story of skulduggery, planning law and the Baader-Meinhof Group In Pioneer Aggregates (UK) Limited v Secretary of State for the Environment, Lord Scarman stressed that planning control is a creature of statute, a comprehensive code imposed in the public interest into which the courts should not import principles or rules derived from private law unless expressly authorised by statute or if it is necessary to give effect to the legislative purpose. That sound advice means that planning legislation is given a strict literal construction and that persons whose circumstances fall within, or without, the words of a section know where they stand in consequence. Thus Mr Beesley, the owner of green belt land in Hertfordshire, may have thought in 2002 when building his new barn: or house. What he probably did not think was that he was embarking on something which would lead to one of the most remarkable bouts of litigation in planning law, culminating in the Supreme Court decision of Secretary of State for Communities and Local Government v Welwyn Hatfield Borough Council. Certainly he knew about section 171B of the Town and Country Planning Act 1990. In 2001 he had applied for and obtained planning permission to build a hay barn for grazing and haymaking. The permission was subject to a condition that “the building shall be used only for the storage of hay, straw or other agricultural products”. It was a lavish barn. Inside its metal sheeted exterior, through the roller shutter door, was a garage, entrance hall, study, lounge, living room, toilet, storeroom, three bedrooms (two with ensuite bathrooms), and a gym. It had mains electricity and drainage and a telephone line. Mr Beesley and his wife moved in and lived there for just over four years. Section 171B(2) Town and Country Planning Act 1990 provides that no enforcement action can be taken against a breach of planning control consisting of the change of use of any building to a single dwelling house after the end of four years beginning with the date of breach. Mr Beesley openly admitted that he had all along intended to build a house disguised as a barn and live in it for four years. He knew that he would never have obtained planning permission to build a house in the green belt. His intention was to obtain the benefit of immunity from enforcement and only then declare his hand. He applied for a certificate of lawful use or development under section 191 of the 1990 Act. The planning authority refused, saying that the house was a barn and thus did not become immune from enforcement until ten years after the breach, under section 171B (3). Mr Beesley appealed. The planning inspector upheld his appeal, deciding that the building had been in use as a dwelling house for four years and that was that. The planning authority appealed. Collins J upheld that appeal. He held that the barn was indeed a barn, but that as Mr Beesley had from the outset intended to live in it, it had always been a barn used as a house and so there had been no change of use. The ten year rule applied. Mr Beesley appealed. The Court of Appeal, with undisguised frustration, allowed the appeal, saying that during the period of a few days between its completion and its occupation the building (whatever it was) had had no use and so when the Beesleys moved in there was a change of use from either the permitted use as a barn, or from no use, to a single dwelling house.
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The barn that was really a house: A story of skulduggery, planning law and the Baader-Meinhof Group Mummery LJ’s frustration was palpable: “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.” He went on to note with regret that no public policy argument had been addressed to the court to the effect that statutory provisions should where possible be construed so as to prevent their use as “an engine of fraud”. Quite the reverse. One of the oddest features of this odd litigation is that in his defence of the moral low ground Mr Beesley was fully supported by the Government through the Secretary of State. Welwyn Hatfield Council was fighting alone. The Secretary of State’s position was that Mr Beesley’s case fell within the words of section 171B (2) and the court should not import private law principles in to the planning code to defeat him. In the Supreme Court the planning authority (but not the Secretary of State) for the first time argued that Mr Beesley should not be allowed to profit from his own wrong. The authority invoked the principle of R v Chief National Insurance Commissioner ex parte Connor in which a widow’s apparently absolute entitlement to widow’s allowance was defeated on the ground that she had only become a widow by killing her husband. The case was an instance of a wider principle that statutes are to be construed in good faith. It is presumed that Parliament intends to confer a benefit only when the required acts are done in a lawful manner. Where a literal construction would damage the public interest and a strained construction would not disqualify any deserving person, the court will apply such a construction. Undaunted, the Secretary of State persisted in maintaining that the purpose of the regime was to legitimise long standing breaches and bring certainty. The introduction of private law principles would undermine the very certainty which the statute sought to achieve. Into this morass of statutory construction and metaphysical thought the entry of a member of the Baader-Meinhof group should come as no surprise. Readers of a certain age will recall Astrid Proll: friend of Andreas Baader and an accomplished bank robber in the early days of the movement. She had fled from Germany and, in a false name, using a false passport and a false family history married an English man. When the German government sought to extradite her, she claimed the absolute right of a woman married to a British citizen to be registered as a British citizen and thus immune from extradition. Her claim failed because she could only prove her entitlement to British citizenship by pointing to her dishonest and fraudulent acts: see R v Secretary of State for the Home Department v Puttick. The planning authority relied on this case.
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The barn that was really a house: A story of skulduggery, planning law and the Baader-Meinhof Group There were two difficulties with this approach. The first was that Mr Beesley did not have to point to his fraudulent conduct, merely to four years use of the building. The second was that, as the law then stood, Mr Beesley’s conduct (unlike Astrid Proll’s fraudulent marriage and Mrs Connor’s manslaughter of her husband) was almost certainly not criminal. It would be now, by virtue of Fraud Act 2006. The principle of immunity from enforcement can only apply where a person has done something which is wrongful, namely breaching planning control in the first place. How could Mr Beesley be disqualified from the certificate to which he was entitled, by reason of the wrongful act which entitled him to it? The Supreme Court elegantly side stepped this conundrum by holding that criminality is not an essential element of the Connor principle and pointing to Mr Beesley’s egregious conduct: “His was a deliberate, elaborate and sustained plan to deceive the council from first to last, initially into granting him a planning permission and then into supposing that he had lawfully implemented it and was using the building for its permitted purpose. His conduct throughout was calculated to mislead the council and to conceal his wrongdoing. As necessary features of his deceit he omitted to register any member of the household for the payment of council tax for the period 20022006, contrary to section 6 of the Local Government Finance Act 1992, and he failed to comply with a number of the requirements of the Building Regulations (SI 2000/2531) with regard to the construction of the dwelling. Whether this conduct (and that of his father-in-law with whom he secretly constructed the house) was or was not susceptible to prosecution under the general criminal law cannot be the determining question here. On any possible view the whole scheme was in the highest degree dishonest and any law-abiding citizen would be not merely shocked by it but astonished to suppose that, once discovered, instead of being enforced against, it would be crowned with success, with Mr Beesley entitled to a certificate of lawful use to prove it.” It was held that in “truly egregious” cases conduct may be sufficient to invoke the Connor principle even though it is not criminal. This was one such case, of which Lord Brown said: “Frankly the dishonesty involved in this case is so far removed from almost anything else that I have ever encountered in this area of the law that it appears to constitute a category all its own. I say "almost", because we all now know of the no less astonishing case of Fidler v Secretary of State for Communities and Local Government and Reigate and Banstead Borough Council, a case concerning the construction without planning permission of a mock Tudor castle behind a 40 ft high shield of straw bales and tarpaulin. Mr Fidler, just like Mr Beesley, successfully concealed his dwelling-house from the local planning authority for four years”.
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The barn that was really a house: A story of skulduggery, planning law and the Baader-Meinhof Group Fidler, like Beesley, shows the extraordinary lengths to which some people will go to circumvent planning legislation. In Fidler, where the planning authority had taken enforcement action against operational development under section 171B (1), the Administrative Court held that Mr Fidler could not rely on the four year period because the removal of the bales was part of the construction process and therefore the four year period had not begun to run until then. An appeal to the Court of Appeal is pending. The Supreme Court strongly indicated that the Connor principle could be invoked in that case. If the Localism Bill is passed as it now stands, it will not be necessary to invoke the Connor principle in this sort of case, because draft new sub sections 171 BA, BB and BC of the 1990 Act make express provision for this type of deception. No doubt they will spawn a new round of litigation about the degree of deception and the mental intention necessary to entitle a planning authority to invoke them. The Connor principle remains, however, so that when an egregious attempt is made to secure an apparently unqualified statutory right by underhand means it can be called in aid. And what of the true meaning of section 171B (2)? The Supreme Court decide that there had been too much emphasis on “actual use”, (the Beesleys moving in and living in the property) and that “use” was a broader concept to be looked at in the round: the true question is “what use does a building have?” When an owner has built it as a dwelling house and is about to move in, it is artificial to say that it has no use or that its use is something other than a dwelling house. Otherwise an unsupportable distinction might arise between cases in which a building stood empty for a short period before the owners moved in and those in which the owners began to occupy before completion. Accordingly, there had been no change of use and the ten year period applied. Mr Beesley was not entitled to his certificate. So: the barn was always a dwelling house. The Connor principle was not needed, but no doubt Mummery LJ will feel happier now that it has been invoked.
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