House of straw

So Robert Fidler, who had built a house at Salfords in Surrey, but had concealed its construction with a shield of straw bales to hide its existence from the council until the four year planning enforcement period had expired, may recently have found something in common with the First Little Pig. For on 3 February 2010, Sir Thayne Forbes in the High Court dismissed Mr Fidler’s appeal against a planning inspector’s decision upholding enforcement notices issued by Reigate and Banstead Borough Council (the council) on 16 February 2007 requiring (among other things) demolition of the house and reinstatement of the land. The case in question was Fidler v Secretary of State for Communities and Local Government and Reigate and Banstead Borough Council [2010] EWHC 143 (Admin).

Central to the issue was the Town and Country Planning Act 1990, s 171B(1). This contains the four year timescale for enforcement action and provides that: “Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under the land, no enforcement action may be taken after the end of the period of four years, beginning with the date on which the operations were substantially completed.”

Substantial completion

Mr Fidler argued that the new dwelling house had been substantially completed by around June 2002 when it was still concealed within a shield of straw bales, the top of which had been covered by a tarpaulin. By the time the straw bales and tarpaulin were removed in July 2006 to reveal the new dwelling, the relevant four year period from substantial completion of the new dwelling had expired. So although Mr Fidler readily accepted that the building operations involving the new dwelling construction constituted development for which he had not been granted planning permission, he contended that the time limit for taking enforcement action had expired long before the local planning authority came to issue the enforcement notice on 16 February 2007.

The inspector had rejected the relevant element of Mr Fidler’s appeal on the basis that the overall building operations relating to the construction of the new dwelling included the erection and removal of the straw bales and tarpaulin that had been deliberately put in place to conceal the construction and existence of the new dwelling in order to take advantage of the four-year rule. So when considered as a whole, the building operations were not substantially completed until the removal of the straw bales in July 2006.

Consequently the four-year time limit for taking enforcement action had not expired by the time the enforcement notice was issued in February 2007.
Sir Thayne Forbes (like the inspector) considered the decision of the House of Lords in Sage v Secretary of State for the Environment, Transport and the Regions and another (2003) 1 WLR 983. There their lordships had favoured an “holistic approach” in considering relevant operations for the purposes of planning enforcement. As Lord Hobhouse had explained: “What this means… is that regard should be had to the totality of the operations which the person originally contemplated and intended to carry out”.

Decision of the High Court

In the instant circumstances, the court accepted submissions from both the secretary of state and the council that while, when considered in isolation, the erection and removal of the straw bales was not itself a building operation, nevertheless, when applying the holistic approach applied in Sage, it could on the facts be found to form part of building operations in the light of the totality of the operations as originally contemplated and intended.
The inspector had noted from Mr Fidler’s evidence that it had always been his intention to remove the bales once he had thought that lawfulness had been secured. Consequently, the purpose of the bales had been “to conceal the dwelling whilst under construction and until it was considered that the legal argument on the four year rule would succeed”. In the inspector’s view, therefore, it was: “…quite obvious he never intended to continue to live within a straw stack and until the straw was removed he could not enjoy a reasonable level of residential amenity, consistent with normal expectations of what a dwelling house should provide”.

And: “…it was never Mr Fidler’s intention to build a house which remained encased within walls of straw covered in sheeting. It was always his intention to remove the straw walls thus revealing his edifice once he thought that sufficient time had passed for the lawfulness of the construction to be secured.” In the court’s view the inspector was entitled on the evidence to reach such findings of fact and these “fully justified his critical conclusion that the erection and removal of the straw bales formed part of the totality of the building operations in question”, ie those building operations that Mr Fidler had originally contemplated and intended to carry out.

In the judge’s view, the inspector’s findings of fact made “it abundantly clear that the erection/removal of the straw bales was an integral, indeed an essential (‘fundamentally related’), part of building operations that were intended to deceive the…[local planning authority]…and to achieve by deception lawful status for a dwelling built in breach of planning control”. Consequently, the inspector’s approach could not be faulted and Mr Fidler’s appeal was dismissed.

Comment

It is unusual to find judgments on two different cases concerning planning deception being issued within a week of each other. But while Mr Beesley in Welwyn Hatfield Council v Secretary of State for Communities and Local Government and Beesley [2010] EWCA Civ 26 managed to get away with his plan to conceal from the council the fact that he intended to live in the structure that looked on the outside like a barn, Mr Fidler will no doubt be rueing the decisions of Sir Thayne Forbes and the planning inspector below.
Both cases concerned construction of s 171B of the 1990 Act. But while Beesley concerned change of use in s 171B(2), Fidler came within s 171(B)(1), ie carrying out relevant operations without planning consent. And while in Mr Beesley’s case the court had found that, despite his deception, the statutory criteria had been met, unfortunately for Mr Fidler, the load of bales he used were found on the facts to have been an integral part of the construction operation. Consequently, the statutory four year rule did not apply to preclude planning enforcement.

But while in Fidler the Council’s enforcement notice did in the event manage to withstand two appeals processes, these two cases will prompt planning authorities to heed carefully the warning given by Richards LJ in Beesley, ie “External appearances can be highly misleading...and authorities need to be alert to the possibility of deception.”

Dr Nicholas Dobson is a lawyer specialising in local and public law & is also communications officer for the Association of Council Secretaries and Solicitors

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