Honesty may not always be the best policy

17 Oct 2023

The brevity of an inspector’s reasoning for dismissing an appeal against refusal of an application for a certificate of lawful development (LDC) for the siting of a cabin for use as a dwelling belied a certain depth of feeling over the outcome. Whether that feeling was regret, empathy, exasperation or all, can only be guessed at.

For LDCs the applicant’s own evidence does not need to be corroborated by independent evidence in order to be accepted. If there is no evidence to contradict it or otherwise make the applicant’s version of events less than probable, there is no good reason to refuse the application, provided the applicant’s evidence is precise and unambiguous to justify the grant of a certificate on the balance of probability.

In the case in question (200-012-174), to be immune from enforcement action and therefore lawful, the appellant needed to show the use had subsisted uninterrupted for a period in excess of ten years commencing before 6 June 2012. The appellant’s statutory declaration confirmed that in early May 2012 a couple of wheeled trailers were brought onto the farm, to provide the base on which the cabin was then constructed. Unfortunately for the final outcome, the appellant also stated in a letter appended to her statutory declaration, and confirmed verbally at the Hearing, that the cabin was not occupied as a dwelling until July 2012, during which time she and her partner had occupied a touring caravan on the land.

Clarifying that occupation of the touring caravan for those few weeks between 6 June 2012 and July 2012 could not be a part of the ten-year period of use of the cabin as a dwelling, the inspector had no choice but to find the ten-year rule had not been satisfied and the appeal must fail. He praised the appellant’s honesty but also pointed out that it had resulted in his conclusion.

Just maybe the inspector was alluding to the difference between honesty and truthfulness. Sometimes there is a place to be economical with the truth without being dishonest and telling lies. After all, a criminal defence lawyer defending a client, has no obligation to actively present the truth so long as no lies are told. With professional representation, perhaps the appellant may also have been guided to a different outcome.

Appealing a refusal to issue a LDC is discussed in 4.3014