tag:blogger.com,1999:blog-8170718846507476773.post8922285977930550243..comments2022-12-13T14:45:12.233+00:00Comments on Martin Goodall's Planning Law Blog: Supreme Court rules on Concealed DevelopmentMartin H Goodallhttp://www.blogger.com/profile/07079479984296674469noreply@blogger.comBlogger7125tag:blogger.com,1999:blog-8170718846507476773.post-89003988942730939652021-10-28T10:53:01.961+01:002021-10-28T10:53:01.961+01:00I share AB101’s misgivings about this, but this po...I share AB101’s misgivings about this, but this point was first raised by Sullivan J (as he then was) in <i>R (Mid Suffolk DC) v FSS</i> and was clearly endorsed by the Supreme Court in <i>Welwyn Hatfield v SSCLG</i><br /><br />A newly created building clearly has no lawful or potentially lawful use, because section 75 has no application in this situation. Its use as a dwelling is not a <i>change</i> of use, and so section 171B(2) has no application, and the 4-year rule under that sub-section does not apply. It is this which would appear to throw the residential use in such a case into section 171B(3), making it subject to the 10-year rule.<br /><br />I agree that this does lead to a potentially anomalous situation, as the building operations <i>per se</i> should, in principle, become lawful under the 4-year rule in section 171B(1). However, it seems that in <i>Welwyn Hatfield</i> the Supreme Court viewed the development <i>as a whole</i>, taking what could be described as a ‘holistic’ approach. I don’t think that one can seriously argue with a Supreme Court judgment, and so I think we have to accept the approach taken in <i>Welwyn Hatfield</i>.<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-43410121657167767292021-10-23T15:41:32.383+01:002021-10-23T15:41:32.383+01:00Hi Martin thank you. Whilst that makes sense to me...Hi Martin thank you. Whilst that makes sense to me it leads me, to wonder when is 171B(1) ever in play if ultimately any unauthorised building could be enforced against within 171B(3) because of its ‘use’? For example if an unauthorised factory is built and it is being used for its intended purpose I would have assumed it would have a four year enforcement period under 171B(1) but based on Welwyn Hatfield and in taking the unauthorised development as a whole the LPA have 10 years to enforce using 171B(3). Doesn’t the Welwyn Hatfield judgment render 171B(1) redundant? That is to say that all unauthorised buildings being used for their intended use are immune from enforcement after 10 years unless the LPA 'in appropriate circumstances' decide in the ‘principles of fairness and good governance’ to allow that building to remain if it has not been enforced against within four years. Reading that back I am quite sure I must be incorrect!AB101https://www.blogger.com/profile/06828150395234814337noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-24787499758935877832021-10-21T11:55:10.988+01:002021-10-21T11:55:10.988+01:00My understanding is that in Welwyn Hatfield the Su...My understanding is that in <i>Welwyn Hatfield</i> the Supreme Court considered that the unauthorised development <i>viewed as a whole</i> came under category of “any other breach of planning control” within section 171B(3), so that the 10-year rule applied.<br /><br />So in the scenario predicated by AB101, I don’t think one should look at the erection of the building and its use separately. Taken as a whole, such a development would appear to be subject to the 10-year rule, so the LPA would be justified in serving an enforcement notice at any time within the 10-year period requiring the entire removal of the unauthorised dwelling.<br /><br />Furthermore, if the erection of the unauthorised dwelling had been concealed “to any extent”, the LPA would be able to apply for an Planning Enforcement Order (whether within or outside the 10-year period), provided they did so within 6 months of becoming aware of the development, and this would give them a further 12 months in which to serve an enforcement notice.<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-89325014421901524692021-10-21T10:52:33.464+01:002021-10-21T10:52:33.464+01:00Hi Martin, I find this does not appear entirely lo...Hi Martin, I find this does not appear entirely logical to me. For example, someone builds a house in their garden without planning permission. Fast forward say 6 years and the building has become immune under the 4 year rule, but the use is not immune because the 10 year rule applies. The local authority consider enforcement based on ‘development without planning permission’ but find that other than the building itself there is no development to enforce against because there is only ‘use’ and not a material change of use, therefore they would have to conclude the use of the building is lawful.<br />Is that incorrect?AB101https://www.blogger.com/profile/06828150395234814337noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-53875347012316932072016-06-18T08:48:04.743+01:002016-06-18T08:48:04.743+01:00Martin. That is what I think I thought too, so tha...Martin. That is what I think I thought too, so thank you for the clarification. With respect to Mid Suffolk (and then Sumner) the problem I have is that separating out operations and proposed use just seems illogical! They are (to my mind) part and parcel of the same breach. If you build a building (on land with no lawful use), and that building has not been built for any specific or identifiable end use (just 4 walls and a roof), then the 4-year rule should apply. If on the other hand you build a building that is fully fitted out for an intended end use (whatever that might be), then to my mind the 10-year rule should apply to the entirety of the breach. That to me is common sense, notwithstanding the decisions of the Courts!Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-67886770759670143212016-06-17T18:15:23.801+01:002016-06-17T18:15:23.801+01:00The decision of the Supreme Court in the Welwyn Ha...The decision of the Supreme Court in the <i>Welwyn Hatfield</i> case turned on Mr Beesley’s deliberate deceit, and the consequent application of the <i>Connor</i> principle. I have never dissented from the judgment on that issue.<br /><br />However, absent the issue of deceit, my concern at the time was with the Court’s view that it was the 10-year rule rather than the 4-year rule that applied to Mr Beesley’s use of the building. However, I have since come to accept the correctness of the Court’s approach on that second issue.<br /><br />The development in that case was not a change of use of an existing building; it was the erection of a building for an unauthorised purpose. Whilst the actual erection of the building would (absent the deceit which engaged the <i>Connor</i> principle) have become immune under the 4-year rule as it applies to the substantial completion of operational development, <i>this would not render the unauthorised use lawful</i>. The unauthorised use of a newly erected building undoubtedly comes under the category of “other” breaches of planning control, and is thus subject to the 10-year rule.<br /><br /><br />This point was first brought to light by Sullivan J (as he then was) in R (Mid Suffolk DC) v. FSS [2005] EWHC 2634, when he pointed out that merely because a structure has become immune from enforcement action because it has been in existence for four years does not necessarily mean that any particular use of that structure will also be lawful.<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-47948973135217091952016-06-10T22:31:44.701+01:002016-06-10T22:31:44.701+01:00You said after Beesley that you had to confess tha...You said after Beesley that you had to confess that you had certain difficulties with the reasoning of the Court on the substantive issue (relating to the precise operation of the 4-year rule), and that you might return to this later. Did you, because I am struggling too! Was there or wasn't there a change of use to a single dwellinghouse (immune after 4 years), or did he just build a dwellinghouse (not immune until after 10 years). What if he had built his house, but not actually moved in? Would he have then had a lawful building with no lawful use, as per Sumner v. SSCLG [2010] EWHC 372 (Admin), even though the building was clearly intended to be used as a dwelling?Anonymousnoreply@blogger.com