A high profile planning dispute that saw a farmer losing a battle to live in a house he built without permission and hid behind straw bales should serve as a salutary lesson to landowners and developers, a Midlands planning specialist has warned.
Suzanne Tucker, lawyer with FBC Manby Bowdler, said the case of Robert Fidler and his mock castle highlighted the complexities of planning law and warned that anyone breaching the rules cannot rely on a statutory four-year period to escape prosecution.
Fidler, the Surrey farmer who built a house which he hid for several years behind straw bales, has recently started to dismantle the property after he was told by a High Court Judge that he would be sent to prison if it was not demolished by June.
The news is the latest in a long legal battle concerning the mock castle built by Mr Fidler on his farm in Salfords, Surrey. He began building the four-bedroom property without planning permission in 2000. During construction he surrounded the property with straw bales which completely hid it from view. The property was finished in 2002 when Mr Fidler and his family moved in.
The bales were removed in July 2006 after which Mr Fidler’s local Council served him with an Enforcement Notice requiring demolition of the house because he did not have permission for it. Appealing the Enforcement Notice in 2007, Mr Fidler attempted to rely on the standard planning rule which gives immunity from enforcement action if a building operation has been ‘substantially completed’ for more than four years prior to the issue of the Enforcement Notice.
The appeal Inspector held that the building operations included the straw bales and therefore that the building operations were not ‘substantially completed’ until removal of the bales. The Council had issued the Enforcement Notice within 4 years of removal of the bales and Mr Fidler could not therefore rely on the 4 year immunity rule.
Mr Fidler appealed the Inspector’s decision. The High Court agreed with the Inspector and the Enforcement Notice remained in place.
After Mr Fidler continually failed to demolish the house, including disobeying an injunction supporting the Enforcement Notice, the Council began contempt of court proceedings against him, which led to the High Court ruling in November 2015 that he would be sent to prison unless the property was demolished by 6 June 2016.
Mr Fidler’s tale bears similarities to the facts in the landmark case of Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government and another  LGR 459, which was decided by the Supreme Court in 2011. In that case, Mr Beesley obtained planning permission for a hay barn and in 2002 constructed a building which appeared externally to be just that. Internally, however, it was a house with full living facilities. Mr Beesley and his wife moved in in 2002 and lived there for four years, during which time Mr Beesley’s local Council were completely unaware of the use of the barn as a house.
After four years had passed, Mr Beesley applied for a certificate of lawfulness to use the building as a dwelling house, in an attempt to use the ‘four year rule’ to regularise his residential use of the barn. The Council refused his application and thereafter followed various appeals and challenges of the differing decisions made by the Council, the Inspector on appeal, the High Court and the Court of Appeal. After the Court of Appeal had supported Mr Beesley, relying on the standard 4 year immunity rule, the government legislated to introduce a new rule which allows the immunity period to be reopened if a breach of control had been ‘concealed’.
However, when the case reached the Supreme Court, the judges decided that the Court of Appeal had been wrong, and that Mr Beesley was not entitled to a certificate of lawfulness. They held that the law could not assist someone like Mr Beesley where he had intended, from the outset, to deceive the Council. Mr Beesley’s conduct had led the Council to believe that the building would be an agricultural hay barn and nothing else.
The Court took into account the fact that Mr Beesley’s planning application had described the proposed use as a hay barn; he also said there would be no change of use of the land, and answered ‘not applicable’ in response to a question about sewage disposal. He had also failed to give the required notice under the building regulations which would be needed when building a house; and he did not register for Council tax or place himself on the electoral roll at the property.
The Council were therefore deceived into believing that the barn was being used only as a hay barn, and not a house. The fact that Mr Beesley’s conduct was not criminal was irrelevant; the Court’s view was that law should serve the public interest and that his deceit should not entitle him to a certificate which would regularise the position.
The result was that the Supreme Court applied a common law approach to the Planning Acts, so that the recently enacted ‘concealment’ provisions were not needed.
Since then, few cases have been taken on the statutory provisions, but several have relied on the simpler common law approach. These cases show that great care is needed when a breach of planning control has apparently achieved immunity, because the Council may be able to resist the claim to immunity if the breach has been concealed from it.
The rules are now much more flexible and work in favour of the Council. Whether or not a breach has been ‘concealed’ is often very difficult to judge, and advising as to whether the situation amounts to a deliberate deceit or is a run of the mill breach is similarly difficult. This is a particular problem for people selling or purchasing land and buildings where development has not been formally authorised. Our planning team regularly advises existing and intending land owners on these difficult questions and as to whether to seek a certificate of immunity from a breach of planning control.