UK: Planning - Are Intentions Relevant?

Last Updated: 8 March 2010
Article by Murray Shaw

It is relatively rare for issues in relation to planning to generate much media comment, except perhaps on a local level. While a proposal may result in considerable local comment, even substantial proposals which will have a significant impact rarely reach the national media. There are of course exceptions such as challenges to new runways at Airports and significant infrastructure schemes. Occasionally proposals which are smaller in scale do generate considerable publicity because of the inherent interest that the proposal itself generates – the application by Donald Trump to construct a golf course in the North East of Scotland is a good recent example of that.

In February of this year however proceedings in relation to a single house generated considerable publicity both in national newspapers and on the major news channels.

The case concerned a decision in the High Court involving proceedings brought by Mr Fidler against the Secretary of State for Communities & Local Government. Mr Fidler in effect was challenging an enforcement notice served by the local authority requiring the demolition of a dwellinghouse constructed by Mr Fidler. The dwellinghouse had been completed in June 2002 and Mr Fidler was arguing that as the enforcement notice had been served more than 4 years after that date the unauthorised construction of the dwellinghouse (because there was no planning permission for it) was completed the construction was immune from any enforcement proceedings. It is certainly correct that unauthorised building operations are immune from enforcement action after a 4 year period. The critical issue in this case however was that the dwellinghouse had been hidden behind straw bales and tarpaulins from the date of its completion until the 4 year period had elapsed. The straw bales and tarpaulins were then removed and low and behold the dwellinghouse magically appeared in the landscape.

From the press coverage it is fairly clear that the dwellinghouse was a substantial building in its own right and it is therefore not immediately obvious why the construction process was not noticed or indeed why questions were not asked about the substantial size of the apparent "pile" of straw bales which presumably did not materially change in size over that 4 year period.

Be that as it may, the local authority once the house appeared served an enforcement notice. Mr Fidler thereafter argued that it was immune from enforcement action given the elapse of the 4 years already referred to. At an inquiry the Inspector (the equivalent of a Reporter in Scotland) decided that the building operations were not substantially complete in July 2006 because the removal of the straw bales and the tarpaulin was an integral part of the building operations. There appeared to be no dispute that the straw bales and tarpaulins had been deliberately put in place to conceal the construction and existence of the dwelling and their removal was an integral part therefore of the building process which Mr Fidler undertook.

Mr Fidler appealed this decision to the High Court in England where he was unsuccessful before the judge at first instance – it was this decision that resulted in all the publicity.

In the judgement (which is not particularly long) the judge founds heavily upon the factual circumstances narrated by the Inspector in his decision letter. In particular the following was quoted:-

"Mr Fidler made it quite clear that the construction of this house was undertaken in a clandestine fashion, using a shield of straw bales around it and tarpaulins or plastic sheeting over the top in order to hide its presence during construction. He stated that he knew he had to deceive the Council of its existence until a period of 4 years from substantial completion and occupation had occurred as they would not grant planning permission for its construction.".

It appears from the Inspector's decision letter that there was some form of inspection in May 2002 shortly prior to the house (hidden by the straw bales) being completed but equally it appears to have been accepted that that inspection was unlikely to have identified the existence of the house.

The judge it appears, was heavily swayed by the views of the Inspector in relation to this matter and the factual findings made by him. In particular it appears to have been accepted that the removal of the straw bales and tarpaulins were not in themselves a building operation but in the particular circumstances of this case could not be divorced from the building operations constituting the construction of the dwellinghouse hidden by them. While the judge categorised the removal of the straw bales and tarpaulins as "ancillary activities" he held as a matter of fact and degree they could nonetheless form part of the overall building operations. He again referred to findings made by the Inspector in the following terms:-

"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.".

It seems relatively clear that the motivation of Mr Fidler and the way he went about it was of some relevance both to the Inspector's findings and the decision of the court, albeit both were justified by reference to the factual circumstances rather than the motivation itself.

The case probably generated considerable publicity partly because of the way in which matters were dealt with, partly because of the size of the dwellinghouse and partly because of the likely outcome – the fact that the dwellinghouse now revealed in all its glory may well have to be demolished. Mr Fidler is apparently contemplating an appeal to the Court of Appeal and certainly some commentators have suggested there are good grounds to do so.

A few days prior to the decision in the Fidler case the Court of Appeal had issued a judgement in another case where the approach of the developer of a property appears to have been to deceive the local planning authority. This case was reported on 29 January and involved Welwyn and Hatfield Council v The Secretary of State for Communities & Local Government.

Again it was a case concerning the unlawful erection of a dwellinghouse and the possibility of enforcement action in relation to it. In this particular case the land owner had applied for a Certificate of Lawful Use – in effect a certificate ensuring that there was immunity in the future from any form of enforcement action.

In this case planning permission has been granted back in 2001 for the erection of a hay barn and the planning permission was subject to a specific condition that the building to be erected should only be used "for the storage of hay, straw or other agricultural products and shall not be used for any commercial or non-agricultural storage purposes". In fact the land owner intended to construct a building which he could and would reside in. Construction took place between January and July 2002 and the external appearance was certainly of a barn but it was fitted out internally as a dwellinghouse. In August 2006 (4 years after the building operations were complete) the owner applied for a Certificate of Lawful Use on the basis that the 4 year time limit for enforcement action had expired. After inquiry the Inspector who heard the evidence confirmed the Certificate thereby making the use of the barn as a dwellinghouse immune from enforcement action. The planning authority appealed that decision to the High Court and were successful. They appeared to have been successful on a very technical ground which was as the "dwellinghouse" (the barn) had only ever been used as a dwellinghouse rather than a barn there had been no change of use with the consequence that the 4 year time limit did not apply. This decision was appealed to the Court of Appeal. The Court of Appeal held that the land owner was entitled to a Certificate, effectively restoring the decision of the Inspector.

In issuing its decision the Court of Appeal made clear that no matter how unsatisfactory it might be the court "should not be tempted to adopt a strained construction" of the legislation "in reaction to the deliberate deceit practised by Mr Beesley or out of concern for the difficulties that such conduct creates for local planning authorities in enforcing planning control". The court held that the interpretation of the law should be on an objective basis. The court commented that "if it is considered that there should be a different outcome in a case of dishonesty or deliberate concealment, it is for Parliament to amend the legislation accordingly".

This decision did not result in any particular publicity in the press yet there are underlying similarities to the Fidler case. While different sections of the planning legislation were under consideration ultimately both cases concerned the ability of local authorities to control building operations which the local authorities considered unauthorised and in which each case resulted from the land owner deliberately seeking to conceal what the true intention was. In one case to date the position of the local authority has been upheld and enforcement action has been authorised. In the other case the local authority has been unsuccessful and no form of enforcement action will be possible. Both cases concern developments where, had a straightforward and candid application for planning permission been made, planning permission was unlikely to have been granted.

It is not easy to reconcile the outcome of these cases. It is of course the position that different sections were under consideration and therefore different principles might apply. It may be that in the Welwyn case because the land owner had applied for a certificate before enforcement action could take place he had put himself in a better position. Equally it may simply be that we need to await the outcome of any appeal in the Fidler case where given the approach of the Court of Appeal in the Welwyn Garden case the decision at first instance and indeed the decision of the Inspector may be overturned.

Leaving to one side the nuances of planning law however it seems likely that a well informed member of the public would question why the outcome should be different and to the extent the approach of the land owner in the each case was similar – namely to conceal what they were ultimately seeking to achieve.

Probably the fundamental question is whether or not "intention" is of any real relevance in relation to issues such as those considered in the cases. It might be argued that if intention is ignored then the unscrupulous will be able to achieve or get away with what they want. However cases such as these are rare and importing some form of test of "intent" may well create significant difficulties for those who choose to operate and work within the system. Intention appears not to be relevant in other areas. For example in deciding whether or not a planning permission has been implemented (in other words whether or not building operations have begun) the test appears to be an objective one rather than a subjective one – in other words have building operations taken place which are referable to the planning permission irrespective of why those operations may have been undertaken.

It will be interesting to see the outcome of any appeal in relation to the Fidler case. From the general standpoint of the public however these nuances are unlikely to be relevant and the reason the case generated publicity is simply due to the facts – a large house built behind straw bales may now need to be knocked down!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.