The High Court handed down judgement in the case of Fidler v Secretary of State for Communities and Local Government and Another [2010] EWHC 143 (Admin) on the 3rd February 2010. The case concerned an appeal brought under the Town and Country Planning Act 1990 c. 8 (‘the Act’), against a decision of a planning inspector, dismissing an appeal against an enforcement notice issued by the second defendant, the Local Planning Authority for Reigate and Banstead Borough Council.

The appellants had erected, without planning permission, a dwelling house contrary to section 57 of the Act, concealed by a shield of straw bales and tarpaulin with the intention of circumventing planning controls. The appellants sought to appeal the enforcement notice requiring the demolition of the building, under section 174(2)(d) of the Act, on the ground that at the time it was issued, no action could be taken in respect of the breach “after the end of the period of four years, beginning with the date on which the operations were substantially completed” (see section 171B of the Act). The appellants contended that the building was substantially completed in June 2002, with the enforcement notice being issued outside the four year time limit in February 2007.

The question for the court was whether the erection and removal of the bales in July 2006 formed part of the building operations. In which case the four year time limit would only have begun to run upon their removal, and the enforcement notice would have been validly issued well within the four year period.

Although conceding that the erection and removal of the straw bales were not part of the building operations in isolation, the court held, dismissing that for the purposes of determining the starting point of the four year period, it was necessary to take a holistic approach to the development (see Sage v Secretary of State for the Environment, Transport and the Regions and Another [2003] 1 WLR 983).

With regard to the totality of the building operations which were originally contemplated by the appellants the development was to be treated as uncompleted until the straw bales were removed. The situation prior to the removal of the bales fell short of what the appellants had intended; as the bales formed part of the totality of the building operations it was necessary that they be removed before substantial completion was reached and the time limit began to run. Subsequently the court emphasised that the definition of ‘building operations’ in the wider context of the Act was not exhaustive and that there was nothing to justify the view that “includes” in section 55(1) has the meaning “means and includes”.