QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
Sitting as a Judge of the High Court
| ROBERT FIDLER
|- and -
|SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
- and -
REIGATE AND BANSTEAD BOROUGH COUNCIL
Paul Brown QC (instructed by the Treasury Solicitor) for the First Respondent
Rupert Warren (instructed by the Borough Solicitor) for the Second Respondent
Hearing date: 17th November 2009
Crown Copyright ©
Sir Thayne Forbes :
"174 Appeal against enforcement notice
(1) A person having an interest in the land to which an enforcement notice relates … may appeal to the Secretary of State against the notice, whether or not a copy of it has been served on him.
(2) An appeal may be brought on any of the following grounds –
(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted …
(d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters.
(f) that the steps required by the notice to be taken … exceed what is necessary to remedy any breach of planning control which may be constituted by those matters …"
"171B – (1) 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."
"55 – (1) Subject to the following provisions of this section, in this Act, except where the context otherwise requires, "development," means the carrying out of building, engineering, mining or other operations, in, on, over or under land, or the making of any material change in the use of any buildings or other land.
(1A) For the purposes of this Act "building operations" includes –
(a) demolition of buildings;
(c) structural alterations of or additions to buildings; and
(d) other operations normally undertaken by a person carrying on business as a builder.
(2) The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land –
(a) the carrying out for the maintenance, improvement or other alteration of any building of works which –
(i) affect only the interior of the building, or
(ii) do not materially affect the external appearance of the building,
57 – (1) Subject to the following provisions of this section, planning permission is required for the carrying out of any development of land.
171A – (1) For the purposes of this Act –
(a) carrying out development without the required planning permission …
constitutes a breach of planning control.
(2) For the purposes of this Act –
(a) the issue of an enforcement notice …
constitutes taking enforcement action.
"148. The new dwelling is sited on what was the north-western corner of the western yard. It is constructed of stone and brickwork with some oak framing and a second-hand clay tiled roof. Two redundant grain silos have been used to form the casing for the stone/brickwork which creates two castellated features at the north-eastern and north-western corners. There is a stain-glass lantern feature over a central hall/gallery area. The house comprises kitchen, living room, study, shower room/WC and separate WC on the ground floor and 4 bedrooms on the first floor, and another room which the appellant said was still to be fitted out as a bathroom. The windows are uPVC double glazed units set within stained timber sub-frames. To the south of the house is a gravelled forecourt whilst to the north is the new patio and conservatory at the north-western corner.
149. 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. …
150. As an observation, it is evident from the documentary evidence provided that he house was in existence in some form at the time Mr Morden made his inspection in May 2002. The photographs from that period do show the presence of a large stack of straw bales covered in blue plastic sheeting – which it is accepted were actually straw walls with a void inside in which the house was constructed. …
156. … [Mr Fidler] produced a substantial number of bills and invoices concerning the purchase of building materials. There are also letters and statements from tradesmen who worked on the construction of the house and from friends who visited during the building period and those living at Honeycrock Farm. Taken together, along with the evidence of Mr Fidler and his family, I consider this is sufficient to show that, on the balance of probability, the house as a building was constructed by June 2002 and had been lived in for some time prior to that date. …
162. … In this case, the weight of evidence before me indicates that at the date the notice was served (16/02/07) the dwelling had been built and in occupation for over 4 years (i.e. by 16/02/03). Some internal decoration may have been outstanding and there is still no bathroom upstairs but a shower room was said by Mr Fidler to have existed by that time, and this was not contested by the Council. …
163. The main point at issue is whether the presence or otherwise of the straw bales encasing the dwelling are of relevance in terms of the consideration of the matter of substantial completion. There is no dispute that they were not part of the structure of the dwelling and would not have required the skills of a builder for erection or demolition/removal. Nevertheless, they were without doubt put there for a purpose and that was to conceal the dwelling whilst under construction and until it was considered that the legal argument on the 4 year rule would succeed. The walls of straw were not placed there by chance but were fundamentally related to the construction of the dwelling. I accept that the act of concealment does not in itself provide a legitimate basis for the Council to succeed as hiding something does not take away lawful rights that may accrue due to the passage of time. However, the ultimate intention as to whether the walls of straw were to remain or be removed is, in my view, material having regard to the authority in Sage.
164. Mr Fidler was questioned by the Council's advocate on whether it was his intention to live behind a wall of straw bales with no outlook other than at a wall of straw and very limited amounts of natural light. He said he could have gone on living that way if need be but I consider this answer to be disingenuous. From his own evidence and submissions it was always his intention to remove the bales once he thought that lawfulness had been secured. It is therefore 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. It might be argued that people choose to live in caves or enclosures with little or no light or outlook. That may be so, but that was not Mr Fidler's intention. He built a house in a traditional form with large numbers of windows in the walls. If he had intended to look out on straw bales 3m away then it begs the question as to why one would go to the trouble of inserting windows at all. The presence of these windows demonstrates his intentions for outlook, not least the tall picture window in the northern elevation at both floor levels which lights the central hall/gallery area.
"169. … 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. The day-to-day existence within the dwelling when encased by straw was seen as a temporary situation which would be endured for as long as it took to secure lawfulness. It was not a normal living environment (limited, if any, natural light; no outlook; poor ventilation) or one which was intended as a final outcome. Rather it was a situation that would be tolerated for the time being.
170. As a matter of fact and degree, I therefore find that the straw bales were part of the totality of the operations and it was necessary for them to be removed before the point of substantial completion was reached. The matter of substance is not that the bales hid the dwelling (although they certainly did) but that they formed part of the totality of the operations in the holistic sense accorded by the authority in Sage. The situation that existed prior to the removal of the straw bales fell short of what the appellant contemplated or intended to carry out and his intentions were not realised until removal had occurred. As this did not happen until July 2006, substantial completion did not occur until that time and this is well within the 4 year period from the date of the service of the notice.
171. I appreciate that this is a most unusual case and I am not aware of any clear authority that I can draw on which is directly comparable. Sage is a valuable authority on the matter of legal principles but differs in terms of the actual facts. I have interpreted and applied these principles to the best of my judgement. Having regard to the circumstances of the case, I consider that it is right to find against the appellant because the case of lawfulness is not made out on the balance of probability. Unless this test is met the appeal should not be allowed. Accordingly, having regard to the wording of s171B(1), the appeal on ground (d) fails."
"24. The same holistic approach is implicit in decisions on what an enforcement notice relating to a single operation may require. Where a lesser operation might have been carried out without permission or where an operation was started outside the four-year period but not substantially completed outside that period, the notice may nevertheless require the removal of all the works including ancillary works. …"
Agreeing with Lord Hobhouse, Lord Hope put the matter in this way at paragraphs 6 and 7:
"6. … it makes better sense of the legislation as a whole to adopt the holistic approach which my noble and learned friend has described. What this means, in short, is that regard should be had to the totality of the operations which the person originally contemplated and intended to carry out. That will be an easy task if the developer has applied for and obtained planning permission. It will be less easy where, as here, planning permission was not obtained at all. In such a case evidence as to what was intended may have to be gathered from various sources, having regard to the building's physical features and design.
7. If it is shown that all the developer intended to do was to erect a folly, such as a building which looks from a distance like a complete building … but was always meant to be incomplete, then one must take the building when he finished it as it stands. It would be wrong to treat it as having a character which the person who erected it never intended it to have. But if it is shown that he has stopped short of what he contemplated and intended when he began the development, the building as it stands can properly be treated as an uncompleted building against which the four-year period has not yet begun to run."
(i) the terms of the enforcement notice (see paragraph 3 above);
(ii) the terms paragraph 156 of the decision letter (see paragraph 9 above);
(iii) the fact that the dwelling house had been built and occupied for over 4 years before enforcement action was taken (see paragraph 162 of the decision letter); and
(iv) the fact that the straw bales did not form any part of the structure of the actual dwelling house (see paragraph 163 of the decision letter).
23. More to the point and as Mr Brown observed, on analysis it is clear that the essence of Mr Hockman's crucial submission, that the activity of erecting and removing the straw bales did not and could not form part of the overall building operations (in this case, the clandestine construction of a dwelling in breach of planning control that would have the benefit of the 4-year rule), is that the activity in question had itself to be a building operation within the meaning of the Act. As Mr Brown submitted, there is nothing in the Act or in the authorities to justify such a conclusion that is, in my view, plainly wrong. I agree with Mr Brown that there can be a number of ancillary activities on a construction site that, if considered in isolation, would not be a building operation within the meaning of the Act (e.g. the provision of temporary canteen facilities) but which could nevertheless form part of the contemplated and intended building operations when considered as a whole (in line with Sage). In each case, it is a matter of fact and degree as to whether such an activity does form part of the overall building operations. In this context it is significant, in my view, that the definition of development in section 55(1) of the 1990 Act includes (inter alia) the term "operations" (a term that is capable of covering a wide range of activities relating to the actual work of building) as opposed to, say, "works" (a term that is obviously more restricted in meaning when linked to the expression "building").
"163. … [the bales] were without doubt put there for a purpose and that was to conceal the dwelling whilst under construction and until it was considered that the legal argument on the 4 year rule would succeed. The walls of straw were not placed there by chance but were fundamentally related to the construction of the dwelling. …
164. … From [Mr Fidler's] own evidence and submissions it was always his intention to remove the bales once he thought that lawfulness had been secured. It is therefore 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. …
169. … 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. …"