The case went all the way to the Supreme Court, which ruled against Mr Fidler. The Court applied the general rule of public law that no person should be allowed to profit from their own wrong. Furthermore, it could never have been the intention of Parliament to allow planning enforcement to be defeated in circumstances of deceit on the part of the developer.
In the most recent, possibly final instalment of 'castle-gate' Mr Fidler was found to be in contempt of court for refusing to demolish the unlawful development, the High Court giving him until June 2016 to demolish the house or face imprisonment.
Such extreme cases of planning enforcement are uncommon. Indeed, many local authorities appear reluctant to use their full range of enforcement powers.
The Options Available to Local Authorities
The main enforcement action available to local authorities is to issue an enforcement notice. This will set out the steps the owner or occupier of the land must take to comply with the notice, involving either the removal of the unauthorised development or steps required to comply with conditions imposed on a planning permission.
In circumstances where the unlawful activity is harmful to the amenity of the area, the local authority may serve a stop notice or a temporary stop notice. Both have the effect of requiring an immediate stop to the activity.
Stop notices, and particularly temporary stop notices, would appear to be a valuable tool available to local authorities faced with suspected breaches of planning control, effectively providing an immediate solution before more formal steps can be taken using an enforcement notice. However, as revealed by recent data from the Department for Communities and Local Government, they are significantly under-utilised.
During the 12 months ending June 2015, English local authorities issued 5,272 enforcement notices. In the same period only 265 temporary stop notices were issued and 136 stop notices. Only around a quarter of local authorities issued any temporary stop notices at all.
A key reason for the lack of stop notices is a simple one - the fear of getting it wrong. If a stop notice or temporary stop notice is served and it later becomes apparent that, for example, the activity did not take place or it has taken place but is not a breach of planning control, compensation may be payable for loss or damage directly attributable to the prohibition under the notice.
It is unlikely that there will be an overhaul of the planning enforcement regime any time soon, so the apparent under-utilisation of stop notices is set to continue into 2016. With local resources under pressure planning enforcement needs to be targeted. There is also a clear role for education; Central Government measures to simplify the planning process and get the country building mean there should be no excuse for development in breach of planning rules.