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13/11/2015

Who’s the king of the castle?

Words:
Castle

Reigate farmer Robert Fidler has been threatened with prison if he doesn’t demolish a 'castle' built in the green belt without planning permission. Jay Das of Wedlake Bell consider the twists, turns and likely conclusion of a lengthy dispute

Jay Das, Wedlake Bell'Damned if I do, damned if I don't' was the essence of Mr Fidler's defence on an application by Reigate and Banstead Borough Council to commit Mr Fidler to prison for breach of an injunction requiring the demolition of his property.

This is a long-running saga of a man who built a castle, on a farm in the Surrey countryside in 2000 and then hid the property behind a giant wall of straw. The sheer audacity of the planning breach has made him into something of a local celebrity figure and it is perhaps incredible that it has taken some 15 years since the original building was erected for another decision to be made requiring its demolition.

Mr Fidler has availed himself of the entire planning regime during the last decade, he has appealed against planning refusals and enforcement notices to the Planning Inspectorate and thereafter appealed to the courts against decisions by the Inspectorate to refuse consent, and further appealed the decision of lower courts in the higher courts.

Eventually he agreed to an injunction order to demolish the building; the penalty for non-compliance would be imprisonment.

It is with that background in mind that the court would have been considering Mr Fidler's latest claims that an ecological survey conducted in June established the presence of bats and newts around the property and that he would be breaking European laws by knocking down the house without establishing the potential impact on 'roosting' bats currently living at the property. He also claimed he no longer owned the property, having sold it (although the property was not legally transferred).

"The case highlights the uneasy alliance of what are essentially civil breaches and imprisonment - generally a criminal sanction"

The Court had little time for Mr Fidler's defence holding that "I am entirely satisfied that Mr Fidler knew what was required by the court”, making it clear that if the property was still standing in seven months' time, he would not only jail Mr Fidler for three months but also consider increasing the sentence.

Mr Fidler has of course now had the benefit of being able to reside in an unauthorised dwelling for some 15 years and the case highlights the uneasy alliance of what are essentially civil breaches and imprisonment (the consequences of breaching an injunction order) which would generally be considered a criminal sanction. This is the ultimate in sanction which the planning regime offers.

In circumstances where someone has exhausted all appeal processes there is little they can do to avoid going to prison if they don't comply with an injunction order. It has been my experience for acting for local authorities in similar actions that the courts are extremely reluctant to put people in prison for planning breaches – but eventually justice has to be seen to be done and breaches of injunctions are not taken lightly.

If Mr Fidler does not demolish the dwelling, the council itself can take direct action to do so and it has certainly been my experience that they will. Unless the council can be persuaded to make an exception and grant consent in the intervening period, the service of public interest will result in Mr Fidler's castle being demolished in due course.

Jay Das is head of planning at Wedlake Bell

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