Planning

18.05.11

 

Mr Beesley's Barn

The Supreme Court has again overruled the Court of Appeal on a planning matter and on this occasion made some interesting comments about public interest.

Mr B obtained planning permission for a hay barn with a condition which restricted the use of the building to agricultural storage. The barn was constructed and externally looked as it should. However, internally it was fitted out as a house and, on completion, the family moved in.

Throughout the subsequent dealings with the local planning authority (LPA), Mr B acknowledged that he had intended all along to construct a house.

Four years on, the LPA refused an application for a certificate of lawfulness. This application had sought to claim that the house was immune from enforcement action because the change of use from a barn to a single dwellinghouse had occurred more than four years before the application.

On appeal, an inspector granted the certificate of lawfulness on the basis that there had been a change of use. On appeal to the High Court by the LPA, the certificate was quashed. But in the Court of Appeal, the certificate was reinstated on the basis that there had been a change of use of the building four years before the application for the certificate.

The LPA appealed to the Supreme Court, which quashed the certificate. This was because:

  • the building wasn't a barn; it was a house built and occupied as such,
  • therefore there was no change of use for which a certificate could be granted.

The Supreme Court also held the view that, as a matter of public policy, Mr B should be barred from relying on dishonest conduct to avoid planning legislation.

Secretary of State for Communities and Local Government v Welwyn Hatfield Borough Council

Compulsory purchase compensation

In Yarde v London Borough of Newham, the acquiring authority made a compulsory purchase order relating to a house owned by Mrs Yarde. This was confirmed by the Secretary of State in July 2007.

The house vested in the authority on 15 January 2008. That was the date used for the valuation of the property to enable the calculation of compensation. The authority's surveyor used three comparable nearby properties and ruled that he would have assessed the value at £300,000. However, he reduced the value to take account of the poor condition of the house and the consequent cost to a purchaser who would have renovated the house.

Mrs Yarde valued the property at more than £420,000. However, the Lands Chamber found there was no evidence to support that sum.

The Lands Chamber found that the authority's valuer was correct to value the house at the date of vesting on the basis of section 5 of the Land Compensation Act 1961. This provides that "the value of the land shall ... be taken to be the amount which the land if sold on the open market by a willing seller might be expected to realise". The house was in poor condition at the vesting date as a result of many years of neglect.

The Lands Chamber also accepted the point that a purchaser would have been entitled to expect a profit of at least £20,000 to compensate for the trouble and risk of repairing the house.

Consultation on changing commercial premises to residential use

Planning permission is required for the carrying out of development, which includes a change of use of land. The General Permitted Development Order provides a blanket permission to change from certain types of use to other, defined, uses without the need for express permission.

The 2011 Budget announced a consultation on proposals to widen the categories of change which could be made without the need for express permission. In particular the government proposes to allow land used for business and industrial purposes to change to residential use, to free up more land for housing.

The consultation was published on 8 April and seeks views on a number of subjects such as:

  • Whether a change from Use Class B1 (offices; light industry) to Class C3 (dwelling houses) should be allowed without express permission;
  • Whether a change from Use Class B2 (general industrial) and/or B8 (storage and distribution) to Class C3 should be allowed without express permission.

The consultation closes on 30 June 2011.

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Key Contact

Jan Hebblethwaite, associate, +44 (0)121 629 1831, jan_hebblethwaite@wragge.com

This analysis may contain information of general interest about current legal issues, but does not give legal advice.