DC Casebook: Housing: Conversion - Concealed home use of barn held lawful

Planning, 22 August 2008

The council had granted planning permission in 2001 for a barn on the land subject to a condition stipulating that it should only be used to store hay, straw and agricultural products and ruling out commercial or non-agricultural uses. The council refused to issue an LDC on the basis that the barn was not a dwellinghouse and the condition prohibiting its residential use had not been breached for ten years or more. The appellant admitted that he had deliberately set out to deceive the council when he applied for permission and always intended to use the property as a home.

The inspector decided that the period required to achieve immunity from enforcement action was four years and not ten as alleged by the council. He remarked that section 171B(2) of the Town and Country Planning Act 1990 states that where a breach of planning control involves the change of use of a building to a single dwellinghouse, no enforcement action can be taken after four years from the initial breach.

He also cited First Secretary of State v Arun District Council and Brown [2006], where it was held that the immunity period is four years rather than ten even where a condition prevents the creation of a dwellinghouse. With this in mind, he agreed that the evidence, which included various statutory declarations, supported the appellant's claim that he had moved into the barn in August 2002 and lived there continuously since.

Although the building did not have conventional windows, roof lights and ceiling openings allowed natural light into all but two of the rooms. The inspector concluded that it afforded the necessary facilities required for everyday living, as required by the judgement in Gravesham Borough Council v Secretary of State for the Environment [1982]. Although it did not look like a conventional dwellinghouse, he accepted that it had been so used for four years prior to the LDC application.

He placed considerable weight on the evidence submitted by the appellant, including the testimony of two witnesses who confirmed that the building was equipped for residential use when they visited the premises in 2002. Since there had been no break of occupation in the four-year period required for immunity, he concluded that a certificate was justified.

DCS Number 100-056-449

Inspector Keri Williams; Inquiry.