R (on the application of Fidler) v Secretary of State for Communities and Local Government and another [2011] EWCA Civ 1159
Fidler deliberate concealment is the Court of Appeal stage of the famous straw-bale house litigation. It followed the Supreme Court’s decision in Welwyn Hatfield and dealt directly with the effect of deliberate deception on the former enforcement time limits.
The court set aside the permission to appeal which had previously been granted to Mr Fidler. On the Inspector’s findings, the case was a paradigm example of positive deception designed to prevent the council discovering the breach until the limitation period had passed.
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- Neutral citation
- [2011] EWCA Civ 1159
- Court
- Court of Appeal (Civil Division)
- Judgment date
- 1st September 2011
- Judge
- Lord Justice Longmore and Lord Justice Sullivan
- Case number
- C1/2010/0505(B)
Why Fidler deliberate concealment reached the Court of Appeal
In 2010 the High Court had upheld the Inspector’s conclusion that removal of the straw bales formed part of the totality of the building operations, so the former four-year period had not expired.
Mr Fidler was then given permission to appeal. Part of his proposed case relied on the Court of Appeal’s decision in Welwyn Hatfield Council v Secretary of State [2010] EWCA Civ 26.
Before that appeal could be heard, however, the Supreme Court reversed the Court of Appeal in Welwyn Hatfield and held that highly exceptional positive deception could prevent a person relying on the statutory immunity provisions.
The straw-bale screen was positive deception
The Court of Appeal distinguished deliberate positive conduct from simply keeping a low profile. Mr Fidler had erected the straw-bale screen and tarpaulin for the stated purpose of hiding the construction from the council until he believed the enforcement period had expired.
Sullivan LJ regarded that conduct as falling plainly within the public-policy principle applied by the Supreme Court in Welwyn Hatfield. It was therefore no longer material to the proposed appeal whether the straw bales technically formed part of the building operations.
A deliberate deception by conduct can be as serious as a false statement
The deception in Welwyn Hatfield included a dishonest planning application for a hay barn. Fidler was different because the deception was physical conduct rather than a false written planning representation.
That difference did not save the appeal. Longmore LJ emphasised that deliberate deception by conduct can be just as serious as deliberate deception by a written misrepresentation.
Permission to appeal was set aside
The Court of Appeal concluded that, in light of the Supreme Court decision and the Inspector’s findings, the proposed appeal had no real prospect of success. The earlier permission to appeal was therefore set aside.
This is why the 2010 and 2011 Fidler judgments should be read together. The 2010 High Court judgment addresses substantial completion; this 2011 decision addresses deliberate deception.
The Supreme Court authority behind the latter point is Secretary of State v Welwyn Hatfield Borough Council [2011] UKSC 15.
The current statutory concealment route is separate
These cases arose under the previous enforcement regime and before Parliament introduced the planning enforcement order provisions for deliberately concealed breaches.
For the present-day route, see our guide to a planning enforcement order and our page on current enforcement time limits.
Read the full Fidler 2011 judgment
The full Court of Appeal transcript is held in the Planning Geek case law library. Gold Members can open the protected PDF below.
Fidler Deliberate Concealment Case Law Page Updated: 9th September 2026