Trainee solicitor, Ellie Mullins and solicitor, Mike Harman, of Holmes & Hills' team of specialist Planning Law solicitors discuss the recent case of Mr Wildin and the opportunistic (and illegal) development of large leisure facilities on garden land.
Wildin v Forest of Dean District Council highlights the consequences an individual may face if they decide to build without planning permission or, more importantly, ignore a planning enforcement notice, and subsequent injunction, requiring them to “unpick”, or demolish, the unauthorised development.
Planning permission is required for the carrying out of any development of land under s57 of the Town and Country Planning Act 1990. A building may be granted planning permission if it complies with the limitations and conditions to a permitted development right.
Class E of Part 1 to Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015 permits the construction of a building required for a purpose incidental to a dwellinghouse. That permitted development right is subject to several limitations, including that the building must not have more than a single storey.
The background is neatly summarised in the High Court judgment as follows:
“7. … In 2013, [Mr Wildin] began building what [Counsel] described in his skeleton argument as a 'large sports building' in the gardens of 24 and 24A Meendhurst Road, Cinderford, Gloucestershire ('the land'). As I shall explain, the [Forest of Dean District] Council indicated in 2013 that this was not permitted development and would be unlikely to be given planning permission. In due course, the Council issued an enforcement notice, which was upheld on appeal, as amended.
8. [Mr Wildin], undaunted, continued constructing the building. He accepted in an email he sent the Council in 2014 that he knew that he was taking a risk that the money spent on the building would be wasted and that he might have to demolish it if the Council's view turned out to be right (as, indeed, it did). Now complete, the building is a substantial building. It includes a sports hall, gym, squash court, a [16-seat] cinema, a two-lane ten-pin bowling alley, a casino, a bar and a soft-play area. There are also toilets and stores.”
Simply put, because the building was more than two storeys high, it could not constitute permitted development under Class E and had been unlawfully constructed. A planning enforcement notice was issued requiring Mr Wildin to address the clear breach of planning control.
Mr Wildin did not comply with the requirements of the enforcement notice that he had unsuccessfully challenged at appeal.
The Council subsequently sought, and obtained, an injunction to ensure compliance with the enforcement notice. Mr Wildin was given 18 months to comply. However, he further ignored the injunction - a criminal offence itself – arguing that he could not afford to carry out the works and that his employee’s jobs would, or could, be put at risk.
Committal proceedings were brought against Mr Wildin in respect of his non-compliance. Mr Wildin claimed he could not afford to carry out the remedial works which were given short shrift by the Judge who found that there was a reasonable basis for the hypothesis that Mr Wildin was a “very wealthy man” having “worked for a long time building up what appears to be a successful accountancy business”.
If he is to avoid 6 weeks imprisonment, Mr Wildin must now comply with the terms of the injunction by the 10 March 2022. Mr Wildin was also ordered to pay a substantial sum to the Council in costs. Given the extraordinary facts of this case, perhaps this is not the last that we have heard of this matter.
This judgment highlights the dangers of building without planning permission and further not complying with an enforcement notice or injunction by the Court.
Indeed, the Court found that Mr Wildin was the author of his own misfortune and “spent a great deal of money building a large sports hall in his back garden. He knew when he did that that he was gambling because he did not have planning permission and was therefore risking the loss of the structure on which that money had been spent. It seems unlikely that any rational person would take such a risk unless the potential loss was easily affordable.”
A damning criticism from the Courts.
Carrying out unauthorised development does carry the risk of planning enforcement being taken. Non-compliance with a planning enforcement notice is a criminal offence and can lead to a fine or imprisonment. Equally, non-compliance with an injunction is contempt of Court and is equally punishable by fine or imprisonment. The teeth insofar as breaches of planning control are concerned can bite hard.
Should you need assistance or have any questions regarding planning permission, permitted development rights, or in respect of planning enforcement action, please do not hesitate to contact the team here at Holmes & Hills LLP who will be happy to assist.
More particularly when seeking to rely upon permitted development rights it is frequently advisable to seek a Certificate of Lawfulness confirming that what has been done/been built, or proposed to be done/built, is lawful. Again, the team here at Holmes & Hills frequently advise on such issues should you require assistance.
Wildin v Forest of Dean District Council [2021] EWCA Civ 1610
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