Whilst this topic has very little to do with the issues we normally deal with we thought some readers may find this article interesting.
Mr Beesley obtained planning permission to construct a barn. However, he actually constructed a 3 bedroom house and disguised it as a barn. He and his wife then lived there for 4 years undetected however, when Mr Beesley then applied for a certificate of lawfulness the certificate was refused.
The case has had quite a lot of publicity with many people divided on whether Mr Beesley should or should not be granted the certificate of lawfulness. That decision we leave to you.
What Mr Beesley did after the 4 years of occupation was to apply under section 191 of the 1990 Act for a certificate of lawfulness of the building as a dwelling house in reliance on section 171B(2) on the ground that there had been change of use of the building from the permitted barn to that of a single dwelling house and that the four-year period within which enforcement action had to be brought had elapsed.
However the Supreme Court took the view that there had been no change of use of the building to use as a single dwelling house for the purposes of section 171B(2) as the building had never been constructed or used as a barn. They further held that the issue was whether it could have been the legislator’s intention that a person conducting himself like Mr Beesley could invoke the benefits of sections 171B and 191.
Mr Beesley’s conduct consisted of positive deception in matters integral to the planning process and was directly intended to and did undermine the regular operation of the process. If the certificate was issued he would have profited directly from that deception if the passing of the normal four-year period for enforcement which he brought about by deception were to entitle him to resist enforcement. This, the court held could not be the intention of the legislator.
To quote Lord Brown of Eaton-Under-Heywood USC
on any possible view the whole scheme was in the highest degree dishonest and any law abiding citizen would be not merely shocked by it but astonished to suppose that once discovered, instead of being enforced against, it would be crowned with success and Mr Beesley entitled to a certificate of lawful use to prove it. The dishonesty involved in this case appeared to constitute a category all its own in this area of the law.
The council is now to make a decision on the continued use of the building as a dwelling house and additionally on its construction.
Filed under: England & Wales, FLW Article, comment, legislation, planning
28 April, 2011 • 15:03 1
Mobile Homes and Article 8!
In Murphy v Wyatt the Court of Appeal Wyatt brought in a mobile home to replace a dilapidated caravan after her partner Mr Barrett died. The caravan was located on just under 2 acres of rough pasture which the Wyatt’s partner used for his livery business. The landlord served a notice to quit in 2009.
Mr Barrett entered into a oral weekly tenancy in 1975 and in 1979 he moved a caravan onto the plot and began sleeping in the same from time to time. His relationship with Wyatt began in the mid-80s and in 1989 Wyatt moved in with Mr Barrett. In 1996, Mr Barrett then ceased using the land for his livery business.
Mr Barrett then sought a certificate of lawful use for the caravan in 2002 in order to claim Housing benefit. Upon Mr Barrett’s death in 2002 Wyatt continued living in the caravan and paid rent with Murphy’s consent.
The caravan was then replaced in 2007 with a mobile home. Wyatt failed to obtain planning permission and failed to obtain Murphy’s consent. The mobile home was on the same original location but was slightly larger than the caravan. Again the certificate of lawful use was obtained.
The issue before the Court was therefore did Wyatt have security of tenure under the Mobile Homes Act 1983.
The court held that Wyatt did not and found in favour of Murphy. The reasoning for the courts decision was that the 1983 Act could not apply to a tenancy where planning permission was sought after the tenancy term began. The court held
The court also held that they did not believe that the 1983 Act could apply to more land than the land on which the mobile home is to be sited plus any garden or other amenity land. If the Act applied to land other than the pitch that was for the tenants use this would run into “serious conflict” with the legislation protecting business and even agricultural tenants.
Wyatt sought permission to appeal but was refused. The court did however state that if any further applications for possession of this site are made the courts may need to consider Article 8 of the European Convention on Human Rights.
Whilst we can not fault the court for its reasoning it is unfortunate that the issue of Article 8 was dealt with so swiftly and briefly. With the influx of cases recently suggesting that Article 8 is only applicable to social landlords there are fears among private landlords that the scope of Article 8 is going to be extended and some certainty would have certainly been welcome.
Filed under: England & Wales, FLW Article, comment, legislation, litigation, planning, tenancy agreements