Publication
Keeping your dawn raid guidance current
Unannounced inspections or ‘dawn raids’ are used by antitrust authorities to obtain evidence when there are suspicions that individuals or businesses have infringed the antitrust rules.
United Kingdom | Publication | September 2021
In Secretary of State for Communities and Local Government v Welwyn Hatfield Borough Council [2011] UKSC 15, the Supreme Court (SC) considered whether a building unlawfully constructed externally as a hay barn, but internally as a home was entitled to a lawful use certificate relying on s.171B(2) Town and Country Planning Act 1990 (TCPA90) (4 year immunity period). The focus for the SC was the building’s use before the family’s occupation. Per Lord Mance:
In Hedges a different immunity period was considered, namely the 10 years required for a material change of use to become lawful pursuant to s.171B(3) TCPA90. Welwyn must therefore be considered in context. Where a material change of use is concerned, Lord Mance’s comments are less relevant, actual use is important, and evidence of preparatory steps to a change of use are unlikely to be relevant. When preparing an application for a certificate of lawfulness for a material change of use relying on s.171B(3), the focus of the evidence should therefore be on the date the use changed, and evidence of preparatory steps to the change occurring whilst supportive should not be the evidential focus.
On 10 October 2019 Cornwall Council issued an enforcement notice against Mrs Hedges for "Without planning permission, the material change of use of the land from a field used for agricultural purposes to holiday use for the stationing of caravans and tents." She appealed and produced evidence of the presence of mobile toilet and shower facilities on the land, signs, advertisements and bookings, which pointed to the land being used as a campsite from July 2009, or at least by October 2009. No evidence of actual use in 2009 was produced. The Inspector accepted that the facilities provided were ones that would be expected on a campsite. However, the Inspector observed that the appellant could have lawfully used the land as a campsite for 28 days pursuant to permitted development rights, and that the facilities provided (in the absence of their use as part of a campsite) would have amounted to a storage use on the land, and that the Council would have been unable to enforce against such storage as a material change of use of the land to a campsite. The Inspector dismissed the appeal and upheld the enforcement notice, 10 years continuous use as a campsite before the issue of the enforcement notice not having been established. Mrs Hedges made a statutory challenge to the High Court pursuant to s.289 TCPA90.
HHJ Jarman QC dismissed the appeal and held that the Inspector had been entitled to focus on the actual use of the land in determining whether there had been 10 years’ continuous use for the purposes of establishing if the use had become immune from enforcement action pursuant to s.171B(3) when the Council served their enforcement notice in October 2019. Evidence of preparatory steps to a material change of use, such as installing campsite facilities, was not evidence of actual use as a campsite. Lord Mance’s comments in Welwyn which required evidence to be considered “in the round”, and in particular the consideration of what the use of a building was before it was occupied for the purposes of s.171B(2) were not relevant here. Evidence of actual use was required to establish a material change of use. In determining when the use of the land as a campsite became unlawful and entitled the Council to take enforcement action, regard also had to be had in this case to the fact that Mrs Hedges had been entitled to use the land for 28 days as a campsite pursuant to permitted development rights.
Publication
Unannounced inspections or ‘dawn raids’ are used by antitrust authorities to obtain evidence when there are suspicions that individuals or businesses have infringed the antitrust rules.
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