Biggart Baillie Solicitors

Planning - Are Intentions Relevant?

Thursday, April 21, 2011

by Murray Shaw

It is relatively rare for issues in relation to planning to generate much media comment, except perhaps on a local level.  While a proposal may result in considerable local comment, even substantial proposals which will have a significant impact rarely reach the national media.  There are of course exceptions such as challenges to new runways at Airports and significant infrastructure schemes.  Occasionally proposals which are smaller in scale do generate considerable publicity because of the inherent interest that the proposal itself generates – the application by Donald Trump to construct a golf course in the North East of Scotland is a good recent example of that.

Two recent cases have resulted in considerable publicity largely as a result of their particular circumstances and what appear to be significant steps deliberately taken to avoid the need to secure planning permission.

The first case concerned a decision in the High Court involving proceedings brought by Mr Fidler against the Secretary of State for Communities & Local Government.  Mr Fidler in effect was challenging an enforcement notice served by the local authority requiring the demolition of a dwellinghouse constructed by Mr Fidler.  The dwellinghouse had been completed in June 2002 and Mr Fidler argued that as the enforcement notice had been served more than 4 years after that date the unauthorised construction of the dwellinghouse (because there was no planning permission for it) was completed the construction was immune from any enforcement proceedings.  It is certainly correct that unauthorised building operations are immune from enforcement action after a 4 year period.  The critical issue in this case however was that the dwellinghouse had been hidden behind straw bales and tarpaulins from the date of its completion until the 4 year period had elapsed.  The straw bales and tarpaulins were then removed and low and behold the dwellinghouse magically appeared in the landscape. 

From the press coverage it is fairly clear that the dwellinghouse was a substantial building in its own right and it is therefore not immediately obvious why the construction process was not noticed or indeed why questions were not asked about the substantial size of the apparent “pile” of straw bales which presumably did not materially change in size over that 4 year period. 

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Be that as it may, the local authority once the house appeared served an enforcement notice.  Mr Fidler thereafter argued that it was immune from enforcement action given the elapse of the 4 years already referred to.  At an inquiry the Inspector (the equivalent of a Reporter in Scotland) decided that the building operations were not substantially complete in July 2006 because the removal of the straw bales and the tarpaulin was an integral part of the building operations.  There appeared to be no dispute that the straw bales and tarpaulins had been deliberately put in place to conceal the construction and existence of the dwelling and their removal was an integral part therefore of the building process which Mr Fidler undertook. 

Mr Fidler appealed this decision to the High Court in England [2010 EWHC143 (Admin)] where he was unsuccessful before the judge at first instance – it was this decision that resulted in all the publicity. 

In the judgement (which is not particularly long) the judge founds heavily upon the factual circumstances narrated by the Inspector in his decision letter.  In particular the following was quoted:-

“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.”.

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It appears from the Inspector’s decision letter that there was some form of inspection in May 2002 shortly prior to the house (hidden by the straw bales) being completed but equally it appears to have been accepted that that inspection was unlikely to have identified the existence of the house. 

The judge it appears, was heavily swayed by the views of the Inspector in relation to this matter and the factual findings made by him.  In particular it appears to have been accepted that the removal of the straw bales and tarpaulins were not in themselves a building operation while in the particular circumstances of this case could not be divorced from the building operations constituting the construction of the dwellinghouse hidden by them.  While the judge categorised the removal of the straw bales and tarpaulins as “ancillary activities” he held as a matter of fact and degree they could nonetheless form part of the overall building operations.  He again referred to findings made by the Inspector in the following terms:-

“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.”.

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It seems relatively clear that the motivation of Mr Fidler and the way he went about it was of some relevance both to the Inspector’s findings and the decision of the court, albeit both were justified by reference to the factual circumstances rather than the motivation itself. 

The case probably generated considerable publicity partly because of the way in which matters were dealt with, partly because of the size of the dwellinghouse and partly because of the likely outcome – the fact that the dwellinghouse now revealed in all its glory may well have to be demolished. 

The second case concerned similar deception.  This case has now been the subject of a decision of the Supreme Court (Secretary of State for Communities & Local Government v Welwyn Hatfield Borough Council [2011] UKSC15.

Again it was a case concerning the unlawful erection of a dwellinghouse and the possibility of enforcement action in relation to it.  In this particular case the land owner had applied for a Certificate of Lawful Use – in effect a certificate ensuring that there was immunity in the future from any form of enforcement action.

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In this case planning permission has been granted back in 2001 for the erection of a hay barn and the planning permission was subject to a specific condition that the building to be erected should only be used “for the storage of hay, straw or other agricultural products and shall not be used for any commercial or non-agricultural storage purposes”.  In fact the land owner apparently always intended to construct a building which he could and would reside in.  Construction took place between January and July 2002 and the external appearance was certainly of a barn but it was fitted out internally as a dwellinghouse.  In August 2006 (4 years after the building operations were complete) the owner applied for a Certificate of Lawful Use on the basis that the 4 year time limit for enforcement action had expired.  After inquiry the Inspector who heard the evidence confirmed the Certificate thereby making the use of the barn as a dwellinghouse immune from enforcement action.  The planning authority appealed that decision to the High Court and were successful.  They appeared to have been successful on a very technical ground which was as the “dwellinghouse” (the barn) had only ever been used as a dwellinghouse rather than a barn there had been no change of use with the consequence that the 4 year time limit did not apply.  This decision was appealed to the Court of Appeal.  The Court of Appeal held that the land owner was entitled to a Certificate, effectively restoring the decision of the Inspector. 

In issuing its decision the Court of Appeal made clear that no matter how unsatisfactory it might be the court “should not be tempted to adopt a strained construction” of the legislation “in reaction to the deliberate deceit practised by Mr Beesley or out of concern for the difficulties that such conduct creates for local planning authorities in enforcing planning control”.  The court held that the interpretation of the law should be on an objective basis.  The court commented that “if it is considered that there should be a different outcome in a case of dishonesty or deliberate concealment, it is for Parliament to amend the legislation accordingly”. 

The case was then appealed by the planning authority to the Supreme Court.

A particular curiosity of this case was that prior to the hearing before the Supreme Court no issue of “public policy” had been argued.  This argument emerged before the Supreme Court – in effect the issue was whether the fact that the person building the house (Mr Beesley) had always intended to deceive the planning authority was relevant to the planning position. 

Before dealing with that issue however the court considered the approach taken by the Court of Appeal and in effect concluded (contrary to the views of the Court of Appeal) there had no change of use with the consequence that the relevant provisions in the legislation did not apply.  In effect the Supreme Court reached the same conclusion as the judge at first instance.  In reaching that decision they analysed in some detail the provisions of the English planning legislation which makes certain breaches of planning control immune from enforcement after a specified period (either 4 or 10 years).  They acknowledged that to some extent the legislation is not particularly clear but came to the view that Parliament in enacting the legislation had decided that where the breach of planning control consisted of a change of use from a building to a dwellinghouse (immune after a 4 year period) then it is beyond doubt that for that section to apply there had to be a change of use.  In this case they rejected the argument that there had been change of use from effectively “no use” (resulting from a short period where the barn once constructed was apparently not used for anything) to use as a dwellinghouse.  The approach of the Supreme Court was that the section should be applied on the basis that what was relevant was the use which in effect had always been intended which in this case was use as a dwellinghouse.  The consequence of that approach was that there was no change of use. 

The decision however is probably more significant as a result of the second issue which the court considered – the public policy issue.  The court was clearly surprised that this issue had not been raised previously and equally surprised (it appears) that the Secretary of State for Communities & Local Government argued vehemently against the “importation” (if that is what it was) of a public policy test in effect supporting the deceit of the party who had carried out the unlawful operations.  It is fair to point out that Mr Beesley sought to introduce new evidence which he argued justified a conclusion that his behavior had not been as deceitful as the Inspector had found.  The Supreme Court decided that new evidence should not be allowed (applying the relevant criteria).  It is probably fair to observe that the Supreme Court thought the new evidence from Mr Beesley while inadmissible was simply not credible. 

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In “importing” the public policy test the Supreme Court had regard to a number of authorities with a view to determining whether on public policy grounds conduct does in fact disentitle a person from relying on “an apparently unqualified statutory provision”.  The Supreme Court held that that question must be considered in the relevant context and having regard to the nature of the conduct and the relevant statutory provisions.  Three of the Supreme Court justices issued opinions.  The decision of Lord Phillips (the President) was supported by the four other judges who did not issue opinions.  All three opinions however came to the view that public policy issues were relevant in the application of the relevant provisions regarding immunity from enforcement.

In reaching that conclusion they acknowledged that the argument was to some extent contrary to other authorities which suggested that intention was not relevant in a planning context.  They also acknowledged that the argument in relation to public policy might compromise the statutory scheme which was intended to be relatively certain and clear.  Nonetheless having regard to what was categorised by Lord Brown as a “deliberate, elaborate and sustained plan to deceive the Council from first to last” the issue of public policy did have a role in this case with the consequence that even if they had not upheld the first ground of appeal by the planning authority they would have reached a conclusion that Mr Beesley was not entitled to the protection afforded by the statute in relation to immunity from planning enforcement having regard to his behavior. 

To some extent the comments by the Supreme Court in this context are “obiter” in that they did not need to determine the public policy issue with a view to determining the case.  They obviously however are comments of considerable significance.  The case involving Mr Fidler (referred to above) has apparently been stayed (sisted) to await the outcome of the Supreme Court decision.  Obviously the Supreme Court could not decide the Fidler case but it seems inconceivable that given the behavior of Mr Fidler (which was described by Lord Brown as a “no less an astonishing case”), his appeal had any real prospects of success. 

While this case concerns the application of the planning legislation in England, it is difficult to see that a different conclusion would actually now be reached in Scotland.  Having said that there are cases in Scotland where the Scottish Courts have made very clear that the issue of intention is probably not relevant and that the scheme in the planning legislation is intended to be a self contained and straightforward scheme – see for example East Dunbartonshire Council v Secretary of State for Scotland 1990 SLT 1088.

Both these cases concern fairly extreme circumstances and indeed behavior.  The decision of the Supreme Court however is that public policy is relevant in determining the extent to which there is immunity from enforcement action by the passage of time.  What will be interesting to see is whether that public policy test expands further into issues of  planning control/management and separately what the boundaries of the public policy test are to be – in other words how extreme does the behavior have to be before there is a public policy consideration.

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For more information, please contact Murray Shaw on 0141 228 8000 or email mshaw@biggartbaillie.co.uk