UKSC 15
On appeal from:  EWCA Civ 26
Secretary of State for Communities and Local Government and another (Respondents) v Welwyn Hatfield Borough Council (Appellant)
Lord Phillips, President
JUDGMENT GIVEN ON
6 April 2011
Heard on 7 and 8 February 2011
James Findlay QC
(Instructed by Sharpe Pritchard)
|1st Respondent (Secretary of State for Communities and Local Government)
James Maurici QC
(Instructed by Treasury Solicitors)
|2nd Respondent (Alan Beesley)
(Instructed by Sherrards)
LORD MANCE (with whom Lord Phillips, Lord Walker, Lady Hale and Lord Clarke agree)
"(1) Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed.
(2) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach.
(3) In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach."
Section 171A defines "a breach of planning control" as (a) carrying out development without the required planning permission, or (b) failing to comply with any condition or limitation subject to which planning permission is granted.
"any matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful at any time if
(a) the time for taking enforcement action in respect of the failure has then expired; and
(b) it does not constitute a contravention of any of the requirements of any enforcement notice or breach of condition notice then in force".
Section 191(1) provides:
"If any person wishes to ascertain whether
(a) any existing use of buildings or other land is lawful;
(b) any operations which have been carried out in, on, over or under land are lawful; or
(c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful,
he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.
(2) For the purposes of this Act uses and operations are lawful at any time if
(a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and
(b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force."
"the total absence of argument from the council, or the Secretary of State, about the effect of Mr Beesley's reprehensible conduct in obtaining planning permission by deception and in failing to implement it" (para 43).
He added (para 45) that
"it is very difficult to believe that Parliament could have intended that the certificate procedure in section 191 should be available to someone who has dishonestly undermined the legislation by obtaining a planning permission which would never have been granted if the council had been told the truth".
The first issue section 171B(2)
"(1) . for the purposes of this Act development of land shall be taken to be initiated-
(a) if the development consists of the carrying out of operations, at the time when those operations are begun;
(b) if the development consists of a change in use, at the time when the new use is instituted; .
(2) For the purposes of the provisions of this Part mentioned in subsection (3) development shall be taken to be begun on the earliest date on which any material operation comprised in the development begins to be carried out.
(3)The provisions referred to in subsection (2) are sections 85(2), 86(6), 87(4), 89, 91, 92 and 94.
(4)In subsection (2) "material operation" means
(a)any work of construction in the course of the erection of a building;(aa)any work of demolition of a building;(b)the digging of a trench which is to contain the foundations, or part of the foundations, of a building;(c)the laying of any underground main or pipe to the foundations, or part of the foundations, of a building or to any such trench as is mentioned in paragraph (b); ."
Here, he says, the planning permission for a hay barn was initiated as soon as the first trench was dug; and this was as capable of being referable to the permitted hay barn as it was to the intended dwelling house; so he submits that the first basis upon which Richards LJ held that there can be a change of use (see para 7 above) can be supported by this route. Although Mr Booth put his submission in terms of "initiation" under subsection (1), that subsection, once relevant to compensation, appears to have been long obsolete (Encyclopaedia of Planning Law and Practice, Sweet & Maxwell, para P56.04). But a parallel submission may be made under subsection (2), which defines when development is to be taken to have begun, for the purpose of deciding whether it has been begun within the time required by statute or the permission itself.
"Change of use to residential development can take place before the premises are used in the ordinary and accepted sense of the word, and [counsel] gives by way of example cases where operations are undertaken to convert premises for residential use and they are then put on the market as being available for letting. Nobody is using those premises in the ordinary connotation of the term, because they are empty, but there has plainly, on those facts, been a change of use.
The question arises as to how much earlier there can be a change of use. Before the operations have been begun to convert to residential accommodation plainly there has been no change of use, assuming that the premises are not in the ordinary sense of the word being used for residential purposes. It may well be that during the course of the operations the premises will be wholly unusable for residential purposes. It may be that the test is whether they are usable, but it is a question of fact and degree."
The second issue the facts as found by the inspector
Mr Beesley's application to adduce fresh evidence on the new point
"7 The appellant, Mr Beesley, says that he deliberately deceived the council when he applied for planning permission for a barn. He always intended that the building should be a dwelling. .
22. .. he admits that he has carried out a planned and deliberate deceit over an extended period. I consider this to reduce his credibility as a witness. .."
"The appellant has confirmed that the building was never intended or designed for any other use than a dwellinghouse. The appellant and his wife may also give evidence at the inquiry."
Mr Beesley's proof of evidence had been to like effect:
"2.2 On 7 December 2001 I obtained planning permission for the erection of a hay barn.
2.3 Between January and July 2002, the building was erected. The building was never intended for any use other than as a dwelling house."
These statements were in support of Mr Beesley's case that what he had built was a dwelling house, within section 171B(2).
"20. [Mr Beesley] acknowledges that in the course of the planning enquiry he must have intimated to the inspector that, when seeking planning permission from the council, he had already determined to erect a dwelling. So much is evident from the statement of the planning inspector at paragraph 7 of his report.
21. However, it is contended that such indication was given by [him] in error and that when providing his answer to the inspector's question [he] misunderstood what it was that was being asked of him. .."
"12. . It was approximately at this point that we made a decision to build the Barn as a dwelling and to move into it. We spent so much time there as it was and we felt protective of our smallholding (even more so in view of the thefts) and so moving in to it seemed the most sensible thing to do.
13. .. I knew that, if I asked the council for permission to build a house on the land in lieu of the barn, my application would be refused, and so I said nothing about our decision to build a dwelling and move into it. Planning permission for the (re-situated) Barn was granted on 7th December 2001 I was aware that in planning law there is as a 'catch-all' rule that provides that, where the local authority does not commence enforcement proceedings within 4 years .. , immunity from such enforcement action arises. I freely admit that I knew what I was doing and that I kept deliberately silent about the true use of the premises. .."
"did not there raise any legal argument concerning my alleged deceit. Accordingly, it did not appear to me to be necessary to seek to correct the inaccurate impression I must have given to the Planning Inspector regarding my intention when submitting the planning applications in respect of the Barn. It was simply not an issue that was relevant to the issues at the time, and I took a decision, principally with a view to saving costs, that I would not seek to address the issue of the supposed deceit by way of witness statement and would not participate in the proceedings. That was not a position that I was altogether happy with at the time, but I took a pragmatic approach having regard to the way in which the [council's] case was put."
He says that, in the course of preparing for the Court of Appeal proceedings, he specifically raised with his legal team the question whether to put in a "statement to correct the inaccurate impression I must have given the Planning Inspector", but "I was advised that the question of my intention when submitting the applications were [sic] not relevant to the point at issue". Now, however, that the case against him in the Supreme Court does directly put in issue his conduct, he says, he has no choice but to take steps to correct the inaccurate impression, and is "in a sense, relieved to now have the opportunity to explain my side of the story in effect forced upon me".
The second issue merits
"1450. Law should serve the public interest. It is the basic principle of legal policy that the law should serve the public interest .
Where a literal construction would seriously damage the public interest, and no deserving person would be prejudiced by a strained construction to avoid this, the court will apply such a construction.
In pursuance of the principle that the law should serve the public interest, the courts have evolved the important technique known as construction in bonam partem (in good faith). If a statutory benefit is given only if a specified condition is satisfied, it is presumed that Parliament intended the benefit to operate only where the required act is performed in a lawful manner. .
1453. Illegality. .. Unless the contrary intention appears, an enactment by implication . imports the principle of legal policy embodied in the maxim nullus commodum capere potest de injuria sua propria (no one should be allowed to profit from his own wrong). The most obvious application of this principle against wrongful self-benefit relates to murder and other unlawful homicide".
"The principle of public policy invoked is in my opinion rightly asserted. . If no action can arise from fraud, it seems impossible to suppose that it can arise from felony or misdemeanour. . This principle of public policy, like all such principles, must be applied to all cases to which it can be applied without reference to the particular character of the right asserted or the form of its assertion".
"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."
The Lord Justice 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".
"The court is entitled to construe a statute . . . in the light of its ability to promote its notions of public policy. The cases do not, however, in my judgment, establish a principle that the plain words of a statute which define what is lawful must be read subject to a proviso that what is criminal cannot be lawful. Section 191, in a systematic way, defines what uses and operations are lawful for the purposes of the Act and states the consequences of achieving that status with specific reference to section 36(2)(a) of the Environmental Protection Act 1990. There is no principle of public policy which requires that the intent of Parliament as expressed in section 191 should be defeated in the manner claimed." (Pill LJ at para 15)
"Whatever might be the position in other contexts, it is to my mind clear beyond argument that activity which is illegal by reason of contravention of one or other of the regulatory statutes referred to in section 191(7) is not activity which, (for that reason alone) prevents an application being made under section 191(1); or which prevents a local authority from fulfilling the duty imposed upon it by section 191(4). To hold otherwise would be contrary to the plain intention of Parliament when enacting section 191(7) of the Town and Country Planning Act 1990." (Chadwick LJ at para 39)
"The broad principle of not benefiting from a person's own illegal acts simply does not fit into the reality of what is being done when planning permission is granted or when a certificate of lawful existing use is granted on the basis of failure to take enforcement action over a period of 10 years; and, in particular, it does not fit, for the reasons that my Lords have given, into the particular case here, which is a case specifically addressed in section 191(7)." (Buxton LJ at para 47).
Not only, therefore, was there no relationship whatever in Philcox between the company's offending under the Environmental Protection Act and its breach of planning control in making unpermitted use of the land, but Parliament in section 191(7) of the 1990 Act expressly contemplated the issue of a certificate notwithstanding the requirement under different legislation for a waste management licence.
"I can entirely understand the local planning authority's sense of frustration about this. Their planning department is not a police station, and the discovery that a person such as Mrs Brown has not to put too fine a point on it cheated on a conditional grant of planning permission, to detriment of her neighbours and of planning control, may well be a matter of time and of chance. The ordinary ten-year period might well have been thought reasonable for such cases, but . . . it is not what Parliament decided to provide."