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Two recently decided cases involving enforcement against unauthorised dwellings in the countryside have been widely reported and commented on in the national media.

In the case of Fidler, the High Court has ruled that a castle-like dwelling built behind a screen of hay bales will now have to come down.  By contrast, the Court of Appeal has decided in Beesley that a building constructed in accordance with planning permission for a haybarn but used as a dwelling, is immune from enforcement action and can continue to be lived in.

Whilst these cases are easily distinguished on the detailed facts they illustrate the difficulties of trying to achieve immunity from enforcement through lapse of time under current planning law.

In Fidler, the appellant had erected a screen of hay bales covered on top by a tarpaulin. Behind it and without planning permission he constructed a rather esoteric dwelling with castellated towers and other design flourishes.

After living in the completed dwelling behind the hay bale screen for a little over four years and therefore confident that sufficient time had elapsed for the dwelling to be immune from enforcement (after four years a building without planning permission is immune from enforcement action), he removed the hay bales to reveal his home to the outside world.

Six months later the local planning authority served an enforcement notice requiring the dwelling to be demolished. Mr Fidler appealed claiming that the four year rule applied to confer immunity from enforcement. The Inspector decided that the hay bale screen was part of the overall building operations involved and as a result the dwelling was not substantially complete until the screen had been removed. It was then that time started to run for the purposes of immunity under the four year rule.

Mr Fidler took his appeal to the High Court where the main issue was whether the removal of the hay bales, even though not in itself a building operation, ought to be considered an integral part of the unauthorised development or whether that development had in fact been completed when construction of the house itself had finished.

The Judge held that it was the totality of the operations that resulted in the unconcealed dwelling and following the decision of the House of Lords in Sage, the matter had to be considered holistically and by reference to what Mr Fidler had intended to be the completed development; that was the dwelling with the screen removed. Four years had not passed between that time and the enforcement notice being issued, the immunity from enforcement had not been acquired and therefore the appeal was dismissed. Subject to any appeal, Mr Fidler's dwelling will have to be pulled down.

It is likely that this decision will be appealed and if so it will be interesting to see whether the Court of Appeal applies the principle in Sage.

That may be unlikely given its decision in Beesley.

Mr Beesley contemplated a very similar end result to Mr Fidler, a new dwelling in the open countryside, but went about deceiving the planners in an altogether more sophisticated manner.

Mr Beesley obtained planning permission to build a hay barn for the storage of hay and agricultural equipment and built the building he had planning permission for. However, the building was always contemplated as a dwelling and was fitted out as such internally, with rooflights and sunpipes providing natural light to all but two rooms.

Having lived in his rather esoteric dwelling for four years, Mr Beesley applied for a Certificate of Lawful Existing Use or Development (CLEUD) on the basis of the other four year rule, under s.171 B (2) Town and Country Planning at 1990, which provides immunity from enforcement against ‘the change of use of any building to use as a single dwellinghouse' after four years.

It was not in dispute that the four year rule covered the operational development that did not accord with the planning permission.  Mr Beesley also needed to establish the residential use because the planning permission was for an agricultural use.  The permission was subject to a condition that "the building hereby permitted shall only be used for the storage of hay, straw or other agricultural products and shall not be used for any commercial or non agricultural storage purposes".

The local planning authority refused the CLEUD application saying there had been no change of use of the building for the purposes of s.171B(2) because it had been built, and occupied, as a dwelling.

Mr Beesley's appeal was upheld by an Inspector and the local planning authority appealed to the High Court.

The High Court agreed with the local planning authority and held that the building had only ever been in use as a dwelling and as there had been no other use, s.171B(2) did not apply. Mr Beesley then appealed to the Court of Appeal.

The Court of Appeal found that although the building had been constructed and used from the outset as a dwelling and that had always been what Mr Beesley had intended, there was a change of use from the permitted agricultural use that invoked the four year rule under s.171B(2).

The appeal was allowed on the basis that the four year rule on the change of use to a single dwelling does apply and therefore the CLEUD should have been granted. Mr Beesley's deceitful scheme did not affect the facts presented by the CLEUD application and there was therefore no reason to refuse it.

This decision may be considered questionable, not because the Court of Appeal should have taken account of Mr Beesley's deceit in the original planning application (it was right to find this had no bearing on the facts presented by the CLEUD) but in the interpretation of s.171B(2) which arguably does require an actual change of use of the building in question before it can be relied upon. It may be hoped that either the local planning authority or the Secretary of State will seek leave to appeal to the Supreme Court for clarification on this point alone.

These two similar cases are a timely reminder of the legal complexities of planning enforcement, periods of immunity and certificates of lawfulness. The consequences of mistaken reliance on immunity from enforcement or on an inadequate CLEUD application are usually significant and often dramatic.

The Planning Team at Stephens Scown is experienced in advising on this difficult area.  If you have any questions please call Peter Edwards on 01872 265100