Failed Property ‘Try On’ May Be a Crime


The property owner submitted a planning application to build a barn to store hay. This was granted on the condition that use was limited to the storage of hay or some other agricultural purpose. When the building was constructed, it looked, from the outside, like a hay barn. However, internally it was fitted out as a house. The owner moved into the property, using it as a home from August 2002 onwards. In 2006, he applied for a certificate of lawful use on the ground that the property had been used for four years as a dwelling. Such applications can be made when the owner can show that the property has been occupied in breach of planning control for the required period of time. The appropriate time limit is four years where there is a breach of operational development or change of use of a building to use as a single dwelling.
The council refused to grant the certificate of lawful use. The property owner appealed the decision and the building inspector upheld the appeal. The council then appealed that decision.
In court, it was accepted that the property owner had intended to deceive the council from the outset regarding the true use of the building. This, as it turned out, may have been an unwise admission, as the court suggested that the property owner might have committed a criminal offence by obtaining planning permission by deception. If the offence of deception were proved, then the profit from the crime could be subject to confiscation under the Proceeds of Crime Act 2002.
The court ruled that the certificate should not be granted. Firstly, the construction of the building was not unlawful. It had planning permission and was capable of being used for the allowed purpose. There was therefore no breach of operational development. Secondly, there was no change of use to a dwelling. It has always been used as a dwelling. Accordingly a certificate of lawful use could only be correctly applied for after ten years and the council has until August 2012 to issue an enforcement notice. In the circumstances, the council is unlikely to miss the opportunity to make an example of the property owner.
In this case, the property owner was well and truly ‘hoist with his own petard’. Had he remained in residence beyond August 2012, he would most likely have succeeded, although the question of unpaid council tax on the property would have caused disquiet to the council. Any resolution of the situation is likely to prove expensive. It is always better to get it right first time and be safe rather than sorry.

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