A new planning bill could appear in the statute book this summer, but the proposed changes are proving unpopular with lawyers, writes Grania Langdon-Down


The story of the farmer who hid a mock castle he had built – complete with ramparts – behind a huge stack of tarpaulin-covered straw bales for four years in a bid to outsmart council planners sparked media attention around the world.



At a time when the government is trying to balance its conservation responsibilities with its pledge to build 240,000 new homes a year and push through a controversial new planning bill, the hidden castle raises key issues over planning policies, enforcement and the future of green belt land.



Farmer Robert Fidler claims he was driven to conceal his dream house – with only birds nesting in the straw to enliven the view from the windows – because Reigate and Banstead Borough Council refused to allow him to convert farm buildings into a family home on his Surrey farm.



He removed the straw shield in 2006, arguing that, because the house had by then been ‘substantially complete’ for four years, it was now legally allowed to exist. He applied to the council for a Certificate of Lawfulness, which can be sought after a development has been in place for at least four years without planning permission.



The council investigated and, in 2007, issued an enforcement notice ordering him to demolish it. The two sides have been fighting it out at a public inquiry at Reigate Town Hall this month, alongside a dozen other appeals against enforcement notices involving different developments on his land.



Mr Fidler, who is representing himself at the inquiry, says: ‘The fact that the council didn’t know the house was there is irrelevant to when the four-year rule starts. The issue is whether it had been ‘substantially completed’ for four years before they took any action, and I have the receipts to prove it [has been].’



The council is vigorously defending its enforcement notices. Councillor Adam De Save, executive member for planning and housing, says Mr Fidler already has a dwelling in a converted farm office and his ‘castle house’ is harmful to the openness of the green belt.



‘Seventy per cent of our borough is green belt land,’ he says. ‘Being so close to London, we are under constant pressure from developers to build houses. We need our green belt to protect our towns and villages from over-development and, when unauthorised developments are the subject of complaint or are discovered, the council has a duty to enforce planning controls.’



The planning inspector’s decision is not expected for at least six months. If the council wins, Mr Fidler, who could then take his fight to the High Court on a point of law, will have six months – or whatever timescale the inspector sets – to demolish the house. If Mr Fidler wins, planning permission will be granted with or without any conditions set by the planning inspector, unless the council appeals on a point of law.



Just last year, stud farmer Graham Head, who tried to use the four-year rule after building a three-bedroom bungalow inside a barn on green belt land in the picturesque Surrey North Downs, was ordered by Mole Valley District Council to demolish it. He was given until 28 March this year to knock it down, but has appealed to the European Court of Human Rights, which has agreed to hear his case.



David Brock, chair of the Law Society’s planning and environmental law committee, says hiding a house is a ‘novel approach’. The point of the four-year rule, he says, is to have a limitation period on long-term claims. ‘The fact that the house was hidden doesn’t seem to help the planning authority at all. Lots of breaches pass the four years because the planning authorities don’t spot them,’ Mr Brock says, adding that councils 'probably rely more on informants than the police’.



The overall effectiveness of the enforcement system is pretty good, he says, but it depends on enforcing against people for whom it matters. ‘Ordinary people living ordinary lives are usually willing to comply with planning controls because they can be quite easily enforced.



‘There are other sections of society for whom prosecution for breach of enforcement notices is not very serious. The classic case is travellers, where enforcing by prosecution in the magistrates’ court has historically not got the authorities very far. So they have to resort to injunctions and, ultimately, they have to turn up with bulldozers. That leads to a lot of criticism that the enforcement system is useless and unfair because it is the ordinary person, who can be easily found and fined, who ends up complying.’



Building on green belt land also provokes strong feelings. Established 50 years ago as a buffer zone between town and country, the green belt is under review as the government tries to balance housing needs with conservation issues. Mr Brock, a partner with Mills & Reeve, says: ‘Life is dynamic and we have to respond to change. I personally don’t think one should regard the green belt land as sacrosanct.’



For planning lawyers, many of the big issues of the day are contained in the Planning Bill, currently before Parliament. Richard Keczkes, head of planning at City firm Olswang, says the last planning act, the Planning and Compulsory Purchase Act 2004, underwent its own four-year gestation.



The present bill was first mooted last summer and the government wants it on the statute book by this summer. Mr Keczkes, a member of the Law Society’s planning committee, says wryly: ‘You could say this demonstrates the government’s commitment to improving the planning system. However, you could also say it shows the government’s desire to build infrastructure, such as nuclear power plants, and to capture development value through the new Community Infrastructure Levy.’



Among the sensitive issues in the bill is the proposal to create review panels of local councillors who will hear minor appeals following the refusal of planning permission by their planning officers.



Mr Keczkes says of the idea: ‘The Law Society and many other planning bodies are against this. Given that the appearance of bias is grounds for legal challenge by judicial review, I don’t see how the proposal will achieve its purpose of speeding up the planning process.’



Caroline Allen, head of development and regulatory at Leeds City Council legal services, says local authorities are also very concerned about the proposed panels. ‘They are likely to raise issues of impartiality and the perception of impartiality, and legal officers are cautious about advising on governance issues.



‘It is a significant change which needs lots of safeguards. I am not convinced that the benefits will be other than to reduce the planning inspectorate’s caseload.’



When it comes to major developments, the bill proposes a new system for permitting national infrastructure projects, such as nuclear power stations, governed by a different system of enforcement.



‘In those situations,’ says Mr Brock, ‘it will be a criminal offence to fail to comply.’ He is not in favour, pointing out there would need to be effective time limits on the new offences.



The bill also proposes a Community Infrastructure Levy system of tariffs, based on a flat-rate roof tax that will require the landowner to pay hard cash per house to the local authority for use on infrastructure, such as roads and flood relief.



The planning committees of the Law Society and the City of London Law Society have produced a joint briefing on the bill. This says the levy is a major new form of taxation with significant implications for the planning system. However, it points out, the government has chosen to introduce the levy in a mere ten clauses tagged on to the end of the Planning Bill.



Mr Brock argues that the levy brings certainty to a deal, because developers will know the cost per house. ‘But there are also lots of complications. Who will be liable for the payment? What happens if it is not paid? Will the development be stopped or the planning permission revoked? What happens if the local authority doesn’t spend the money on the relevant infrastructure?’



In the meantime, the government is soon expected to announce its shortlist of ten locations for its flagship eco-towns – developments providing thousands of zero-carbon and affordable houses. Battle lines are already being drawn up by local protesters. ‘Eco-towns will cause planning problems of great magnitude,’ warns Mr Brock.



Alongside these new developments, local authority planning lawyers are having to advise planning officers on the last lot of changes brought in under the 2004 act. Ms Allen, who is a member of the Law Society’s planning committee, says: ‘Those changes were intended to make the system quicker and more flexible. They have actually achieved the opposite, with planning officers struggling both with the bureaucratic nature of the regulations and carrying out sustainability appraisals.’



The changes do not stop there. In 2008 there is also a Climate Change Bill and a Planning and Energy Bill to get to grips with, as well as discussions on whether green belt land should remain sacred or be managed differently.



Mr Keczkes says planning lawyers live in fear of Christmas and summer holidays. ‘These are when the government churns out forest-loads of consultation papers in the hope we won’t have the energy to be too critical.’



Worth taking one’s summer holiday early this year, in that case.



Grania Langdon-Down is a freelance journalist