Wednesday, 24 November 2010

Concealed development still on the agenda

Readers will no doubt recall the two cases which arose from the concealment of development which it was then claimed had become lawful under the four-year rule. In Welwyn-Hatfield, the Court of Appeal, applying the clear ruling in FSS v Arun DC [2006] EWCA Civ 1172, held that the deliberate concealment of the development did not prevent the four-year rule from operating. In the case of Fidler, the High Court upheld an Inspector’s decision that the concealed development had not been substantially completed (in accordance with the criterion laid down by the House of Lords in Sage) until the straw bales hiding the development were removed. The straw bales, and their subsequent removal, were regarded by the Inspector (and apparently by the High Court) as being an integral part of the development.

Both decisions are the subject of further appeals. I understand that the Supreme Court is likely to hear the appeal in Welwyn-Hatfield some time next term (i.e. between Christmas and Easter). The appeal in Fidler is due for hearing in the Court of Appeal, but so far as I am aware no date has been set, and it is impossible to estimate when that appeal may come on.

So it looks as though we may have to wait a while longer before we get a definitive answer on the issues arising from these two cases. For what it’s worth, I think the Court of Appeal got it right in Welwyn-Hatfield - one simply has to look at what the statute actually says. If this leads to what some may regard as an unsatisfactory result, it is for parliament to amend the legislation, and the courts ought not to concoct some strained interpretation in order to produce an expedient result.

As regards Fidler, I find it very difficult to understand how the removal of a free-standing pile of straw bales can be brought within the definition of operational development, although the thrust of the House of Lords decision in Sage was that one has to take into account the entirety of the project, rather than confining one’s consideration to those operations which actually constitute development. This view, however, differed markedly from the conclusion reached in that case both at first instance and in the Court of Appeal, and there must be some considerable remaining doubt as to how far the Sage doctrine can be taken, and in particular whether it can be said to include the removal of a physically separate pile of straw bales.

The so-called ‘Localism Bill’ will still be going through parliament at the relevant time, so there is a possibility of an amendment to the Bill being proposed to deal with these issues. The precedent represented by the rules on demolition, which were hurriedly shoved into what became the 1991 Act is not encouraging. A similarly ill-thought-out amendment made to the same Bill was the provision which then became Section 54A of the 1990 Act (now, in slightly amended form, Section 38(6) of the 2004 Act). So before anyone makes any hasty proposals to amend Section 171B, the implications of such a change, and the way it would work in practice need to be carefully thought through.

[UPDATE (14 December): The Localism Bill will make amendments to the 1990 Act which will introduce a procedure for taking enforcement action 'out of time' against development which has been concealed. See later posts in this blog dealing with the enforcement provisions in the Bill (in this case Clause 104).]


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