Development in England and Wales is controlled and most works and material changes of use require planning permission before they can be carried out.
If such works are carried out without planning permission, the local planning authority may take enforcement action requiring any unauthorised development to be demolished or require a property to be reinstated to its former use. Failure to comply with an enforcement notice can result in criminal prosecution. The local planning authority may also carry out the steps required by the notice and recover the cost of doing so from the landowner.
There are, however, certain circumstances where the council may be time barred from taking any such action if it fails to do so within certain time. Different time periods apply depending on the type of breach of planning control.
In general terms, no enforcement action may be taken after 4 years from the date of “substantial completion” of the works or from the date that the use of a property is changed to use as a residential dwelling. For all other breaches, such as other changes of use or failure to comply with a condition imposed on a planning permission, the period is 10 years. Once this time has elapsed, the landowner may apply for a certificate of lawfulness. If granted, this will regularise the planning history and, in effect, make the previously unlawful development, lawful.
Planning permission is required to build a new house. Despite knowing this, Mr Fidler from Surrey, built an extensive farmhouse without first obtaining planning permission from Reigate and Banstead Borough Council (“the Council”). The property was hardly discrete and had features, including a turret, which made it look more like a castle than a farmhouse. This presumably explains why Mr Fidler named it “Honeycrock Castle”.
Mr Fidler built and occupied the house in secret. From the construction phase in 2001, through to its occupation up to July 2006, the house was hidden under tarpaulins and a shield of straw bales so as to hide it from neighbours and the Council. Mr Fidler thought that by only revealing the new dwelling once it had been built and occupied for 4 years, he would be immune from any enforcement action.
Unsurprisingly, Mr Fidler’s assumptions were incorrect. On discovery of the house in February 2007, the Council issued a number of enforcement notices requiring that the dwelling be demolished within twelve months. Mr Fidler unsuccessfully appealed these notices and referred the matter to the High Court. The High Court dismissed his case confirming that as “substantial completion” had not occurred until the straw bales were removed, the 4 year time-limit on enforcement did not commence until then. The Council was therefore entitled to take enforcement action and issue the notices.
Mr Fidler appealed to the Court of Appeal. Around the same time England’s highest court, the Supreme Court, held, in a similar case where a man had built a house in secret within a barn, that those who deliberately conceal what they are doing should not be protected from enforcement action. In light of this decision, the Court of Appeal rejected Mr Fidler’s appeal.
After battling to save his home for over 5 years, Mr Fidler has recently received another, potentially final, set back. Following his failed appeal against the enforcement notices in the Court of Appeal, Mr Fidler subsequently applied to the Council for a certificate of lawfulness on the basis that he had occupied his home, with his family, for over 4 years.
The Council refused his application. Undeterred, Mr Fidler again appealed to the Planning Inspectorate. The Planning Inspectorate relied heavily on the principles set out by the Supreme Court and agreed with the Council that its decision to refuse a certificate of lawfulness was well-founded.
Mr Fidler’s case is a cautionary reminder of the risks of ignoring the need for planning permission. As the case illustrates, the risks of failing to do so can be severe and the courts will not look favourably on those who try to hide what they are doing. Finally, landowners should be aware that in the event planning permission is refused by the council, or granted subject to unreasonable conditions, such decisions can be appealed. Similarly, enforcement notices can also be appealed and there are number of ways to challenge the validity of a notice if its terms are unreasonably onerous or vague.
All appeals must however be submitted within strict time-scales and it is therefore again prudent for landowners and developers to seek professional advice at the earliest opportunity.