Breach of planning control – Enforcement action – Appellant erecting new dwelling without requisite planning permission and concealing building operations under straw bales – Local authority issuing enforcement notices – Appellant claiming limitation period for enforcement action expired – Whether erection and removal of straw bales forming part of building operations so that notices issued within limitation period – Whether appellant entitled to lawful use certificate – Appeal dismissed
In 2002, the appellant built, without planning permission, a new dwelling on his land, in the form of a castle. The building was concealed behind straw bales covered with a tarpaulin, which the appellant used to hide the construction process. He had intended to take advantage of the rule in section 171B of the Town and Country Planning Act 1990, under which no enforcement action could be taken in respect of a building erected in breach of planning control after the end of a four-year period beginning with the date on which the operations were substantially completed.
In 2006, the appellant removed the straw bales and tarpaulin. The second respondent local planning authority issued enforcement notices requiring the demolition of the dwelling and the removal of all resultant materials on the basis that the building had been erected without planning permission and had been substantially completed less than four years earlier.
The appellant appealed to the first respondent secretary of state pursuant to section 174(2)(d) of the 1990 Act, contending that, although the building operations had related to the construction of a new dwelling for which he had not obtained the requisite planning permission, the time limit for taking enforcement action had expired.
An inspector appointed by the first respondent dismissed the appellant’s appeal on the ground that the overall building operations included the erection and removal of the straw bales and tarpaulin, which had been put in place deliberately to conceal the construction and existence of the new dwelling in order to enable the appellant to take advantage of the four-year rule. He held that, accordingly, the building operations had not been substantially completed until the straw bales were removed in 2006 and the four-year time limit for taking enforcement action had not therefore expired. The appellant appealed under section 289 of the 1990 Act.
Held: The appeal was dismissed.
There was nothing in the 1990 Act or in the authorities to justify the conclusion that the activity of erecting and removing the straw bales could not form part of the overall building operations. In each case, it was a matter of fact and degree as to whether such an activity formed part of the overall building operations. It was significant that the definition of development in section 55(1) of the 1990 Act included, inter alia, the term “operations”, which was capable of covering a wide range of activities relating to the actual work of building, as opposed to “works”, which had a more restricted meaning when linked to the expression “building”.
The inspector had been right to consider the evidence and make appropriate findings of fact with regard to the totality of the building operations that the appellant originally contemplated and intended to carry out. In the instant case, crucial to the inspector’s findings were his initial conclusions that: (i) the appellant was aware that he would not be granted planning permission for the new dwelling; (ii) his intention was to construct it in a clandestine fashion using straw bales to conceal the construction process; and (iii) he had intended to deceive the second respondents concerning its existence until he believed that he was in a position to take advantage of the four-year rule.
The inspector had been entitled to reach those findings on the evidence and had justified his critical conclusion that the erection and removal of the straw bales formed part of the building operations. The inspector’s findings of fact made it clear that the erection and removal of the straw bales was an integral part of the building operations that were intended to deceive the second respondents. The appellant had intended to use that deception to gain lawful status for a dwelling that had been built in breach of planning control. The approach adopted by the inspector could not be faulted.
Stephen Hockman QC (instructed by Wright Hassall LLP, of Leamington Spa) appeared for the appellant; Paul Brown QC (instructed by the Treasury Solicitor) appeared for the first respondent; Rupert Warren (instructed by the legal department of Reigate and Banstead Borough Council) appeared for the second respondents.
Eileen O’Grady, barrister
