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.

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