From 2009, you may recall the English case of the landowner who obtained planning permission in March 2000 to erect what was described as a hay barn. One of the conditions attached to the permission was that the building could only be used for the storage of hay, straw or other agricultural products. Despite the external appearance of the building as a barn, it was in fact fitted out like a normal dwelling house. The landowner accepted that he had deliberately deceived the Council when he applied for planning permission for the barn, confessing that he had always intended that it should be a dwelling. However, he claimed that the building had been used as a house for more than four years and therefore could not be subject to enforcement proceedings in terms of the Town and Country Planning Act 1990.

The Court of Appeal held that, although decent law-abiding citizens would find the unanimous ruling “incomprehensible”, on the basis of legal arguments the appeal had to be allowed and so the landowner was allowed to remain in the house.

It is interesting to compare that case with a more recent English one in which a landowner, Mr Fidler, built a house without obtaining planning permission and concealed the building behind bales of straw covered with a tarpaulin. Mr Fidler argued that the house had been substantially completed in June 2002. The new house was revealed when the straw bales and tarpaulin were eventually removed in July 2006. Within a year of the bales being removed, the planning authority issued an enforcement notice requiring Mr Fidler to demolish the house. Mr Fidler claimed he was immune from the planning enforcement notice because more than four years had passed since the building operations were substantially completed. The issue in question was at what point the building operations to the new dwelling house had been substantially completed. On the evidence, it was held that the building operations were not substantially completed until the removal of the tarpaulin and straw bales in July 2006, as they were no doubt put there for the purpose of concealing the dwelling house while under construction and were fundamentally related to the construction of the dwelling.

Comment

The 2009 decision, based on the law as it stood, must be correct. It may seem surprising that a person who deliberately deceives the planning authority can benefit from the deception and take advantage of the time limits for enforcement in the legislation, but that is what the law allowed. The case of Fidler, on the other hand, while reaching the “morally correct” decision, has made it clear that materials used to cover a house must be removed before the house can be said to be “substantially completed”. It is therefore clear that the erection and removal of straw can be included in “operations” which arguably stretches the definition as set out in section 55 of the Town and Country Planning Act 1990 Act. Thus, while this judgment may deter others from trying a similar deception, it may have more far-reaching effects than the courts had anticipated. The cases are also of potential relevance in Scotland: why should "operations" as used in section 26 of the Town and Country Planning (Scotland) Act 1997 be interpreted any differently than in England and Wales?

Nonetheless, the cases raise the question of whether the English legislation should be amended to cater for these situations by inserting a provision relating to deliberate deception or extending the time limits for enforcement action to be taken.