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The next round of the battle between the State and those who build houses in breach of planning controls is scheduled to be heard in the case of Welwyn Hatfield Council v the Secretary of State in the Supreme Court on 7 February 2011.

Building houses without the necessary planning permission is something that has come before the Courts a number of times in the past.  Indeed, readers may recall the case of Fidler v Secretary of State for Communities and Local Government which concerned Mr Fidler’s unsuccessful attempt to avoid planning rules by hiding his new house behind bales of hay. Central to his attempt was section 171B(1) of the Town and Country Planning Act 1990.  

This contains a four year period for enforcement action in the event that, amongst other things, something has been constructed in breach of planning controls, providing “where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under the land, no enforcement action may be taken after the end of the period of four years, beginning with the date on which the operations were substantially completed.”

Mr Fidler’s idea was to wait out the four year limitation period for taking enforcement action before removing the bales of hay and revealing the house.  When Mr Fidler removed the bales of hay, the Council took him to Court and Mr Fidler lost his case because the removal of the bales of hay was considered to be part of the completion of the operation.   However, had this not been the case, it is likely that Mr Fidler would have been successful, notwithstanding his attempts to deceive the Council.

The Supreme Court now has to make a decision on similar facts.  This case concerns an individual called Mr Beesley who built a house when he had planning permission authorising only a hay barn.

In order to get around this, Mr Beesley built his home so that it looked like a barn from the outside.  However, it was fitted out as a dwelling inside.  After living in it for four years, he applied to the Council to legitimise the house.  In doing so, he was quite open about having deliberately deceived the Council when he applied to it for planning permission to build a barn. Unsurprisingly, the Council refused to approve the house.

His case has so far been heard by an appeal inspector, the High Court and the Court of Appeal and will now be heard by the Supreme Court.  It has received differing views as it has worked its way through the appeal process.  The Court of Appeal ruled in favour of Mr Beesley, saying that the language of town planning legislation is sufficiently clear to allow Mr Beesley to retain his house notwithstanding the fraud.  The Court concluded that if there should be a different outcome in cases of dishonesty or deliberate concealment, then that should be provided for by Parliament not the Courts.

The issue of concealed breaches is undoubtedly exercising the patience of the Government. A rule change is proposed in the Localism Bill which is currently working its way through Parliament. The Bill provides for the introduction of a wide ranging new enforcement power (called the “Planning Enforcement Order”) which the Government hopes will help Councils deal with cases such as Mr Fidler and Mr Beesley (see here for Olswang’s recent e-briefing on this subject).

Any Parliamentary change to the planning enforcement rules will turn, to some extent, on the ruling of the Supreme Court. The hearing date of 7 February 2011 is therefore very timely and the decision is one which will be followed closely by real estate professionals throughout the country.