Tuesday, 10 November 2015
Mr Fidlers’ castle
I gave a brief interview this morning on BBC Radio Surrey about the house (or 'castle’) that Robert Fidler built on his farm in Surrey behind a massive pile of straw bales. This case has raised some interesting planning issues over the years, and I have written about it on several occasions in this blog.
Mr Fidler was in court again yesterday, when Reigate and Banstead Council applied to a High Court judge to have him committed to prison for contempt of court. Mr Fidler’s offence is a civil one – failing or refusing to comply with a court order to knock down this unlawful development. A local planning authority has a number of weapons in its enforcement armoury, and in this case (having failed to secure compliance with the enforcement notice they served on him) the Council took out a High Court injunction under section 187B of the 1990 Planning Act ordering Mr Fidler to knock down his castle.
Mr Fidler still failed to comply with the law, and so yesterday Mr Justice Dove ordered that he should go to prison for three months, unless the offending building and associated works are demolished and the site cleared by 6 June next year. The prison sentence is suspended in the meantime, to give Mr Fidler one last chance to comply with the law.
Mr Fidler so nearly got away with his cunning plan. As the law stood (or appeared to stand) when he carried out his unlawful development, the “four-year rule” was very straightforward. If you erected a building without planning permission, the development would become immune from enforcement, and therefore lawful, four years after it was substantially completed. A case in the House of Lords (Sage v. SSETR  UKHL 22) had clarified what is meant by “substantially completed”, and a decision of the Court of Appeal in FSS v Arun DC  EWCA Civ 1172, held that the deliberate concealment of the development did not prevent the four-year rule from operating. However, things were about to change.
While Mr Fidler had been building his castle behind a large wall of straw bales in Surrey, a Mr Beesley had hit upon a different ruse in Hertfordshire. He obtained planning permission to erect an agricultural building. What he built looked outwardly like the building for which planning permission had been granted, but it was built and equipped as a dwelling, and it seems that this was his intention all along. Like Mr Fidler, Mr Beesley moved his family into his newly completed home and lived there quietly and unobtrusively for four years. Then he applied for a Lawful development Certificate, relying on the 4-year rule.
Welwyn Hatfield Council refused to grant the LDC, on the grounds that Mr Beesley had deliberately deceived them as to the true nature and purpose of his development. So Mr Beesley appealed to the Planning Inspectorate against this under section 195. Unsurprisingly (bearing in mind the Court of Appeal decision in Arun), his appeal was allowed. However, the Council wasn’t prepared to take this lying down, and they challenged the appeal decision in the High Court, on the grounds that Mr Beesley’s deceit invalidated his reliance on the 4-year rule. Mr Justice Collins agreed with them, and quashed the appeal decision.
Collins J’s judgment really could not be reconciled with the clear Court of Appeal decision in Arun, and Mr Beesley therefore appealed to the Court of Appeal, who reversed the High Court decision. In light of the decision in Arun, they rejected the Council’s contention that Mr Beesley’s deception prevented the operation of the 4-year rule.
If matters had rested there, not only would Mr Beesley have ‘got away with it’, but so would Mr Fidler down in Surrey, whose case had proceeded by a slightly different route. Mr Fidler’s appeal against Reigate and Banstead’s refusal of an LDC was dismissed by an Inspector on the basis that the development had not actually been completed until the pile of straw bales around the house had been removed, revealing Mr Fidler’s castle in all its glory. So the four-year period did not begin until that date. I felt then, and still feel, that this decision was too clever by half, but the High Court upheld the Inspector’s decision that the 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 were seen by the Inspector (and apparently by the High Court) as being an integral part of the development. I thought this decision was likely to be overturned by the Court of Appeal, which is where Mr Fidler duly went. Permission to appeal was granted, but it then became clear that the Beesley case was going on to the Supreme Court, and so Mr Fidler’s appeal was stayed by the Court of Appeal to await the Supreme Court’s decision in that other case.
Unfortunately, both for Mr Beesley and for Mr Fidler, the Supreme Court, instead of following the Court of Appeal decision in Arun, invoked ‘the Connor principle’. This is a general rule of public law that no one should be allowed to profit from his own wrong. The ‘Connor principle’ actually derives from R v Chief National Insurance Commissioner, ex p Connor  QB 758, in which a widow’s claim for a widow’s allowance failed, despite her apparently absolute statutory entitlement, because her widowhood derived from the manslaughter of her husband, of which she had been convicted.
Lord Mance in giving judgment in Welwyn Hatfield observed that Mr Beesley's conduct, although not identifiably criminal, consisted of positive deception in matters integral to the planning process (applying for and obtaining planning permission) and was directly intended to and did undermine the regular operation of that process. Mr Beesley would be profiting directly from his deception if the passing of the normal four-year period for enforcement which he brought about by the deception were to entitle him to resist enforcement. The apparently unqualified statutory language could not in Lord Mance’s opinion contemplate or extend to such a case. He did not therefore consider that sections 171B(2) and 191(1)(a) were applicable to the facts of that case.
Lord Rodger added that in that situation, where Mr Beesley deliberately set out to conceal the true nature of the development during the whole four year period, with the aim that the council would be prevented (as happened) from taking enforcement action within the four-year period, there is no justification for cutting off the council's right to take enforcement action. To hold otherwise would be to frustrate the policy, indeed the raison d'être, of section 171B(2) of the 1990 Act; in short, it is unthinkable that Parliament would have intended the time limit for taking enforcement to apply in such circumstances.
In light of the Supreme Court’s decision in Welwyn Hatfield, the Secretary of State then applied to the Court of Appeal to set aside the permission to appeal which they had granted in Mr Fidler’s case. In his case, the deception was not the making of a false planning application, but the deliberate hiding of building operations behind a shield of straw bales, the top of which was covered by a tarpaulin. On the appellant's own evidence, the bales were deliberately erected to conceal the construction of the dwelling. This was not a case of someone merely refraining from drawing attention to themselves by, for example, not applying for building regulations approval. Here, there was positive conduct, and the avowed intention of that positive conduct was to deceive the local planning authority so that it would not realise building operations had been carried out until after the four-year period had expired.
It was on this basis that the Court of Appeal decided that Mr Fidler’s conduct was a case of deception which disentitled an appellant from relying upon the four-year rule; it simply did not lie in this appellant's mouth to say that the local planning authority should have spotted the building which he had so carefully concealed at some earlier stage. Were he to do so, it would indeed frustrate the underlying statutory purpose. In this case, it was therefore of no consequence whatsoever whether the bales were or were not part of the building operations; the short point was that this was a deliberate deception which plainly falls within the principles set out in the Welwyn Hatfield case, the consequence of which was that Mr Fidler’s appeal had no prospect whatsoever of succeeding. It was for this reason that the Court set aside the permission to appeal that had been granted by Jacob LJ before the position was clarified by the Supreme Court in Welwyn Hatfield.
This was in effect the end of the road for Mr Fidler, so far as reliance on the 4-year rule is concerned. He has spent another four years battling against an enforcement notice (and a subsequent injunction) requiring the demolition of his castle in the Green Belt, but all to no avail. He did try one last argument in the High Court yesterday, invoking the suspected presence of bats and newts as an excuse for his inability to comply with the court’s injunction. Unfortunately, there is a clear decision of the Court of Appeal in South Hams DC v. Halsey  J.P.L. 761 which is against him on this point. That case established that where compliance with an enforcement notice would require some other licence or consent to be obtained (Listed Building Consent in Mr Halsey’s case), this is not an excuse for non-compliance with the enforcement notice; the owner must obtain that licence or consent in order to enable them to comply with the enforcement notice. Only if the requisite licence or consent is denied would the owner then have a lawful excuse for their non-compliance with the enforcement notice.
Only time will tell whether Mr Fidler will now obey the High Court injunction and demolish his castle in accordance with the requirements of the enforcement notice, or go to prison next June for contempt of court. Common sense surely suggests that, having given the council a really good run for their money, the time has now come to accept that the game’s up, and that the building must now at last come down. The council has the power to demolish it themselves (under section 178), and this might be a step they will be forced to take, if the building is still there by mid-summer.
© MARTIN H GOODALL