An Englishman's home

Robert Fidler’s mock Tudor castle was hidden by straw bales and tarpaulin for four years. His legal battles with the local authority began more than three years ago and have earned headlines in the national press. Pritpal Singh Swarn looks at the legal background to the case.

Robert Fidler took approximately two years to build his mock Tudor castle but did so in a clandestine fashion, concealing the building behind bales of straw and tarpaulin.

He moved his family into the property at the end of October 2001. The building was completed by June 2002. The straw bales were removed in July 2006 and the Local Planning Authority took enforcement action in February 2007 on the basis that the building in question was substantially complete less than four years ago.

Mr Fidler appealed to the Secretary of State and an Inspector upheld the Enforcement Notice on the basis that, "the case of lawfulness is not made out on the balance of probability. ………..having regard to the wording of s171B (1)" of the Town and Country Planning Act 1990.

Mr Fidler then appealed to the High Court. Forbes J dismissed this appeal and said he had to decide "whether the inspector was right to conclude that the removal of the bales and the tarpaulin formed part of the building operation".

He held; "In my view, the Inspector's findings of fact make it abundantly clear that the erection/removal of the straw bales was an integral, indeed an essential ("fundamentally related"), part of the building operations that were intended to deceive the LPA and to achieve by deception lawful status of a dwelling built in breach of planning control".

Apart from the unprecedented publicity this case has attracted, some important points of law have been raised and are discussed below. At the time of writing, Mr Fidler is waiting to hear from the Court of Appeal regarding his application for permission to appeal.

What role does concealment/deceit play in town and country planning matters?

It is important to note for those involved or dealing with situations that includes development or material changes of use through some form of concealment or deceit, their judgments are not biased or diverted because the law is very clear on this particular point.

Section 171B (1) of the TCPA 1990 states: “Where there has been a breach of planning control consisting in the carrying out without planning permission a building, engineering, mining or other operations in, on, over or under 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.

(2) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach.”

The very wording of this section clearly presupposes there may be certain developments or operations and indeed material changes of use that have been carried out without due consent. If this is indeed the case, then in given circumstances the breaches may be rectified after a period of time. On the literal interpretation of the wording of the Act, it does not specifically exclude any reference to concealment or deceit nor does it by implication prohibit any form of clandestine operation, or change of use.

One classic example of a form of deceit or concealment carried out on a regular basis which will be very familiar to planning officers, is simply the discharge of conditions with agricultural tie ins. Occupation in breach of these type of conditions in the main, will be concealed from the LPA until the period of immunity has been achieved. The principle of this is therefore no different to Mr Fidler’s situation.

Unfortunately the decision of the Court of Appeal case of Welwyn Hatfield Council V SoSCLG and Another (2010) EWA civ 26 was not available to Mr Fidler nor to Forbes J at the time of preparing his judgment,

However this case confirmed what we already knew. Richards LJ stated: "External appearances can be highly misleading, as this case shows, and authorities need to be alert to the possibility of deception. The legislation in its current form is open to abuse.

“Whether it should be amended so as to prevent dishonest advantage being taken of the shorter time limit under section 171B(1) and (2) is, as I have said, a matter for Parliament. For my part I doubt whether, under the legislation as it stands, the false representations made in Mr Beesley's application for planning permission, reprehensible though they were, could have the effect of disentitling him to a certificate of lawfulness of existing use."

In the same judgment Pill LJ put the matter beyond dispute. He said: "……..the Acts provide a scheme for control of the development of land by building and other operations and by changes of use. Under the scheme, decisions as to the use being made of land and buildings need to be taken objectively on the facts, for the purposes of 171B, I see no place for analysis of the morality of a particular occupier".

What then does the holistic concept mean and how do you apply it?

Forbes J in his judgment was of the view 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 [section 55] 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).

The meaning of "totality" and the "holistic approach" in Sage V SoSETR and another [2003] 1 WLR 983 was considered to determine what building operations the landowner would have carried out to complete the unfinished building and all these works were largely if not exclusively internal, and had no relevance to the removal of the mask of straw bales surrounding Mr Fidler’s dwelling.

As to whether the contemplations and intentions of Mr Fidler determine whether certain activities are an integral part of building operations is the wrong approach and would appear to give an unnatural extended meaning of section 55 of the TCPA as to what constitutes development and building operations, which if the Inspector's approach is correct can only lead to uncertainty and arbitrariness against the background of defined parameters within section 55.

When is a building substantially complete?

The Inspector in Mr Fidler's case set out in his decision letter: "There is no dispute they [the straw bales] were not part of the structure of the dwelling and would not have required the skills of a builder for the erection demolition/removal.“

It is necessary for the courts to draw the line as to what constitutes a completed development. Development is defined under s55 of the TCPA 1990 as “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 building or other lands."

Building operations include demolition of buildings, rebuilding, structural alterations of or additions to buildings, and other operations normally undertaken by a person carrying on the business as a builder.

The Inspector, however, went on to say: “Nevertheless they [the straw bales] were without doubt put there for a purpose and that was to conceal the dwelling whilst under construction until it was considered the four-year rule would succeed. 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."

The relevance of Sage

The Inspector accepted Sage had no direct comparison with Mr Fidler's case on the facts yet considered this case "key" to his decision. He felt it is necessary to adopt a holistic approach when considering the matter of substantial completion.

"What this means, in short, is that regard should be had to the totality of the operations which the person originally contemplated and intends to carry out", Lord Hope said in Sage.

To put Sage in context, on the facts, the building appeared to have been unfit for human habitation. The ground floor consisted of rubble, there were no internal service fittings, no staircase, the interior was not plastered and there were no windows. In Mr Fidler's case, his building was a finished habitable structure which had been lived in for more than four years.

Bar on Enforcement and Change of use

Section 171B has two potentially overlapping bars ss(1) and (2) (see above).The Welwyn case held that once a particular bar applies, it displaces any other bar, even if the situation could be analysed by any other route (per Richards LJ).

On the facts Mr Fidler has completed and occupied his dwelling house for more than four years, and there would have been a change of use of the land from its previous industrial use to residential at one point in time. The Inspector agreed there was no dispute as to Mr Fidler's use/occupation of the site for over four years and there was also no dispute that the building was constructed in excess of four years.

Applying the reasoning of Richards LJ in the Welwyn case would support the conclusion that Mr Fidler ought to be granted immunity (based on the facts) that there has been a change of use under s171B(2).

So what is the relationship between operational development and change of use?

Richards LJ in Welwyn agreed there was some force in the argument that if construction of the building has become immune by virtue of s 171B(1), the use for the purpose for which it was designed must also be lawful, otherwise the Scheme and intention under s171B would make no sense.

Sensibly the converse must also apply, otherwise, there could be one of many examples of buildings that have attracted immunity by virtue of being constructed and substantially complete for more than four years but cannot be occupied or used for the purpose for which it was constructed.

Pritpal Singh Swarn is a solicitor at Wright Hassall (www.wrighthassall.co.uk). He can be contacted on 01926 880795 or via This email address is being protected from spambots. You need JavaScript enabled to view it..