Planning & Environment

I wonder what the big bad wolf would have done if he’d blown down the straw house only to find a mock tudor castle??

Well that’s what could have found if he had tried to blow down a haystack in Reigate & Banstead!

The High Court in England yesterday upheld a finding of the Planning Inspectorate that removing straw bales hiding a property constituted “building works”. As a consequence, it was held that the operations to construct the development were not substantially completed 4 years before enforcement action was taken and therefore an enforcement notice requiring the demolishing of the building still stood.

The owner, poor Mr Fiddler (appropriately named), is now appealing.

The imprecise definition of terms such as “building operations”, “other operations” and “substantial completion” has to date resulted in a fair amount of litigation. Case law tells us that substantial completion means more than simply completing part of a development (Ewen Developments v Secretary of State for Environment) therefore the fact that the building itself was constructed more than 4 years before enforcement is not necessarily determinative.

The fact that Mr Fiddler lived there for more than 4 years? – well, it has been held that where a dwelling house remained unfit for habitation, building works were not considered substantially complete (Sage v Secretary of State for the Environment, Transport and Regions). But does that necessarily mean the opposite is true?

In regards to “building operations”, the Court in this case has taken the view (well according to the newspaper reports anyway) that as Mr Fiddler’s intention was always to deceive the planning authority then the removal of the bales always formed part of the “building operations”. This would certainly appear to be an arguable position. However couldn’t it also be suggested that in this case the Court has adopted a wide interpretation of the legislation simply in response to Mr Fiddler’s deceit? If so, Mr Fiddler may have a good shot at an appeal as in a recent planning decision (R. on the application of Welwyn Hatfield Council v Secretary of State for Communities and Local Government) it was held that courts shouldn’t adopt a “strained construction of legislation in reaction to deliberate deceit or out of concern for difficulties that such deceitful conduct could create for local planning authorities enforcing planning control. “

Whatever happens, Mr Fiddler’s “castle” is not likely to be demolished without a fight.

Let’s hope that in the end they all live happily every after…

Planning & Environment

Brodies’ planning and environment teams represent clients involved in Scotland's biggest planning issues, offering expert advice to help clients navigate the sometimes daunting Scottish planning law landscape. The Brodies planning team was ranked top tier in both The Legal 500 and Chambers & Partners directories.
Planning & Environment