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By Scott Stemp of http://planningblog.org/

Feb 13, 2011

"Honesty is for the most part less profitable than dishonesty." - Plato

We all wait with bated breath for the judgment of the Supreme Court on the appeal of Secretary of State for Communities and Local Government & another v. Welwyn Hatfield Borough Council, being the appeal against the decision of the Court of Appeal to allow Mr Beesley his Certificate of Lawfulness for 'the barn that never was'.

For those of you who are unaware of the facts in Mr Beesley's case (where have you been?!) Beesley applied for permission to erect a hay barn. He was granted permission to erect a hay barn. Mr Beesley erected what was, externally, a hay barn. But internally it was fitted out as a dwelling. And it was smack in the Metropolitan Green Belt.

Mr Beesley accepted that he deliberately deceived the Borough Council when he applied for permission for a barn, as although he applied for a hay barn he never intended to construct a barn. He accepted his intention was at all times to build and reside in it as a dwelling. He took care in the course of its construction and subsequent residential use to ensure that it did not come to the attention of the council. No Building Regulations approval was ever sought, nor did he register on the Electoral Roll there. Four years and six days after moving in to the property, Beesley applied for a Certificate of Lawfulness for the dwelling.

The Court of Appeal ruled that the proper application of s171B of the Town and Country Planning Act 1990 was that Mr Beesley's dwelling was immune from enforcement action. Reading the judgment (which you can find here) one can almost hear how strenuously gritted the teeth of the Court must have been as they gave Beesley his Certificate. There are plenty of questions raised by their Lordships that "the legislation in its existing form is open to abuse" (per Richards LJ at para 35) and that "It is a surprising outcome which decent law-abiding citizens will find incomprehensible" (per Mummery LJ at para 38).

It is however a situation that readers of this blog will know is not unique or without precedent to those involved in planning enforcement.

What to do? While we wait for the Supreme Court to see if the arguments on fundamental aspects of public policy and principles of law and justice win the day (see Mummery LJ's comments at para 46 and 47 of the Court of Appeal judgment) I want to offer readers of this blog a practical solution that can be implemented right now.

As Mummery LJ observed, Beesley's representations to the LPA were not true. That means they were misrepresentations. Regular readers will be well used to my pushing them out of their comfort zones and i'm going to do it again. How many planners have ever thought about the Fraud Act 2006?

One definition of fraud (there are a few) is set out at section 2 of the Fraud Act 2006:

"A person is in breach of this section if he dishonestly makes a false representation and intends by that false representation to make a gain for himself or another."

Hopefully there are lightbulbs pinging on above your heads as you read this...if not, let me help you a bit more. A false representation is a representation that is untrue or misleading and the maker of the representation knows that it is or might be untrue or misleading.

How 'true' is an application for a structure that the applicant never intends to erect? Might that representation be said to be untrue or misleading? If one were to submit a planning application for a building you never intend to erect but instead intend to use as cover for another unlawful structure - is that an honest course of action? So when you submit your untrue or misleading application, are you being honest?

No lightbulb yet? What about the 'gain' you might be asking. Well, when you get your certificate of lawfulness and have a dwelling where you previously had agricultural land, I feel fairly safe in asserting that the value of that land has likely as not increased. Probably it's increased substantially. Especially if it's somewhere like an AONB or the Metropolitan Green Belt...

And there's more...there is no time limit on bringing a prosecution for fraud. Not like there is for enforcement action.

"Well" you might say "that's all great, but a prosecution for fraud isn't going to get rid of the dwelling like effective enforcement action will, is it?". And you'd be right, it won't. But hopefully i've been a good teacher and you're all itching to shout "CONFISCATION!" (if you're not then get reading).

When you've prosecuted for fraud - well, that would be financial gain from criminal conduct, wouldn't it? - think confiscation. You confiscate every single penny that the dwelling is now worth. And because you've all read my other posts you'll know that you're going to be confiscating the gross value of the house. The defendant can't claim the building costs against that - in fact you as the prosecutor will assume that the building costs are also criminal proceeds and ADD it to the total amount to be confiscated unless the defendant can prove a legitimate source for the expenditure.

How many of these successful prosecutions would you need to advertise before there was a significant drop-off in this type of activity? Not many, i'd bet.

Enforcement officers, think about it. You can take every single penny out of the pocket of people who would otherwise be immune from enforcement and therefore outside your reach.

Planning advisors and lawyers, think about it. When you were advising your client about time limits and enforcement, did you advise them about this risk?

And that's it. Even without the Supreme Court weighing in. Maybe dishonesty isn't quite as profitable as Plato thought...

Questions? Get in touch.

Scott

http://planningblog.org/

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