Agenda item

Description of application – Use of part of barn as residential dwelling CERTIFICATE OF LAWFULNESS FOR AN EXISTING USE.

It was reported that further objections to the application had been received.

The applicant submitted a new application for a Certificate of Lawfulness of an existing use following refusal of a previous application. The current application repeated the refused application but included additional information comprising of a Statutory Declaration signed by the applicant regarding the use of the barn as a residential dwelling for the last 4 years.

At the meeting Members were updated on the additional information provided and on factual issues which had come to light regarding the application.

Members were concerned about the validity of the application and believed that on a balance of probabilities there had been a deliberate concealment by the applicant of the activities carried out on the site.

The Council’s legal representative pointed out that the report correctly advised that the use had been continuous for the required period of time. However, where it could be shown that there has been a deliberate concealment of the activities carried out on the site, the applicant would be deprived of immunity from enforcement action provided under s171B (2) of the Town and Country Planning Act 1990 (as amended).

The Council’s legal representative made reference to statute and the principle set out in Welwyn Hatfield Council v Secretary of State for Communities and Local Government [2011] UKSC 15 in relation to deliberate concealment of breaches of planning control.  In particular, that the planning enforcement order (concealed development) code set out in s171BA, s171BB and s171BC had to be construed as a supplementary procedure which widened the powers available to local authorities, rather than an exhaustive replacement for the principal set out in the Welwyn Hatfield case. 

Some Members were familiar with the Welwyn Hatfield case, which was summarised by the legal representative. Members were advised that they did not need to go as far as applying an ‘’exceptionality’’ test or consider whether the conduct of the applicant had been ‘’truly egregious’’ to establish deliberate concealment (Jackson v Secretary of State [2015] EWHC 20 (Admin) – 13 January 2015). However, it must be shown that the applicant’s conduct was such that it fell within the scope of the Connor Principal, which sets out the following four tests, articulated in the Welwyn Hatfield judgement, to establish whether there had been a deliberate concealment:-

(1) there is positive deception in the planning process;

(2) the deception is intended to undermine the planning process;

(3) the deception does undermine the planning process; and

(4) the applicant stands to profit directly from the deception.

The legal representative read out each test at the and received the following Member responses to each:-

1)  There is a positive deception in the planning process

Members concluded that the applicant was fully aware of the planning process having made a total of eight planning applications in the past. In spite of this she failed to engage with the Council when the conversion was made. Specifically there had been no application for Building Regulations, no payment of Council Tax and no person registered on the Electoral Roll at Yonder Farm. Members considered that taking account of all of the facts there had been a positive deception.

2)  The deception is intended to undermine the planning process

The applicant intended to undermine the planning process by failing to engage with the Council. For example, the applicant failed to provide evidence of Council tax payments, building regulations and Electoral Roll registration. In addition, the non-conforming use of part of the barn as a residential dwelling undermined the Council’s green belt policy, which would only allow residential dwellings under very special circumstances.  The Council had not been able to consider this due to the applicant’s intentional failure to engage with the Council. 

3)  The deception does undermine the planning process

Members were informed that failure to provide any evidence of Council tax payments, building regulations and Electoral Roll registration undermined the planning process because this prevented the Council’s planning enforcement department from being alerted about the breach.

4)  The applicant stands to profit directly from the deception

Members considered that by using the barn as a residential dwelling the applicant stood to profit directly from the deception by way of the increase in value of the property in residential use.

Members having considered the objections, report and additional information, RESOLVED that a CERTIFICATE OF LAWFULNESS FOR AN EXISTING USE BE REFUSED for the following reason:-

The evidence produced to support the application had been arrived at by a process of deliberate concealment and as such the applicant should be deprived of the immunity offered under the Town and Country Planning Act 1990 (as amended).

It wasFURTHER RESOLVED that ENFORCEMENT ACTION BE AUTHORISED against the creation of a residential dwelling at the site as it was considered inappropriate development within the Green Belt, contrary to Policy G1 of the Unitary Development Plan and the NPPF.

Councillor Fawthrop's vote in favour of refusal and enforcement action was noted.