Two contrasting cases highlight potential for unscrupulous land owners to circumvent planning laws.
Two High Court cases have tested the doctrine of the 4 year rule for establishing the legality of a single dwelling in cases where planning permission has NOT been obtained.
In the first case, Peter Bridle and his wife created for themselves a comfortable bungalow within a log cabin, (without the benefit of planning consent).
Their occupation of the dwelling was concealed with movable hay covered panels.
The crux of this case questioned whether the log cabin was exclusively used as a single dwelling. The law as it stands today allows a single dwelling to gain immunity from enforcement where it has been continuously occupied for a period in excess of 4 years. In all other cases of planning breaches involving changes of use the period is 10 years.In this case Chelmsford Borough Council and a Government appointed Planning Inspector took the view that the couple had in fact occupied both a goat shed and a log cabin as a dwelling, with the two structures together forming two separate parts of one dwelling.
To the casual observer this may seem irrelevant, however in the eyes of the law the occupation of two separate structures as one dwelling means that Mr and Mrs Bridle were NOT as a matter of fact occupying a building as a single dwelling house.
They were held to be occupying (for part of the qualifying 4 year period) two separate buildings as a single dwelling. This small but critical difference was determined to require the longer 10 year period of occupation to gain immunity.
The Bridles had not occupied the dwelling for a period in excess of 10 years thus the planning appeal and subsequent high court challenge failed. The Bridles subsequently sought leave to appeal on the grounds that they disagreed with the inspectors findings as to fact. The judge concluded that there was no compelling reason why the case should be referred to the court of appeal as the Bridles challenge did not relate to any issue of law, principle or procedure.
The second contrasting case is that of Alan Beesley and his wife.
Mr and Mrs Beesley were granted consent in 2002 to build a barn for agricultural use. This consent was implemented and from the outside it looks like any other hay store surrounded by farm machinery.
Within the barn the Beesleys created a three bedroom house. In this case the Local Authority took enforcement action which was appealed by the Beesleys; the appeal inspector determined that the dwelling was legal on the basis that it had been continuously occupied for a period in excess of 4 years. The Local Authority challenged the Inspectors decision taking matters to the High Court. Here a judge concluded that allowing them to stay would mean they had got away with what the council called a “plot” to by pass planning laws.
The Beesleys however successfully challenged the High Court decision at the Court of Appeal. The panel of three judges ruled that the breach of planning control, had gained immunity because the dwelling had as a matter of fact been occupied for a period in excess of 4 years.
The crux of this case was the allegation that the Beesleys had deliberately sought to circumvent planning laws by hiding their true intentions (a claim strenuously denied by the Beesleys)
David Jones, Head of Planning services at Evans Jones Ltd. commented.
“The two contrasting cases show the lengths some property owners will go to in an attempt to secure consent for dwellings in locations where new dwellings would not normally be permitted. Whilst it is not known whether either party set out to deliberately deceive, what is apparent is that the Court of Appeal did not take into account the intentions of the appellant. As the law currently stands, an unscrupulous land owner could seek to deliberately hide their true intentions and by stealth gain immunity from enforcement and gain permission for a new dwelling in the countryside.
The risks are high for any landowner considering such a course of action. In contrast the potential gain can be substantial if the 4 year occupancy rule can be proven”.
For more information contact David Jones email or give me a call on 01242 531411.
Click on the link to read more about our planning and architectural services Evans Jones Planning Division
UPDATE: The revised enforcement procedure coming into force following the Royal Assent of the Localism Bill in 2011 will impact upon those seeking to rely upon the 4 year rule particulalry in cases where a Local Authoroty are able to demostrate that a proeprty owber has sought to concneal the true use. For furhter information regarding the latest polcy consideration please cointact David Jones MRTPI