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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Sage v Secretary Of State For Environment Transport & Regions & Anor [2000] EWHC Admin 394 (11 October 2000) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/394.html Cite as: [2000] EWHC Admin 394

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ALAN FRANK SAGE v. SECRETARY OF STATE FOR ENVIRONMENT TRANSPORT AND REGIONS and MAIDSTONE BOROUGH COUNCIL [2000] EWHC Admin 394 (11th October, 2000)

Case no: CO/94/2000
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
CROWN OFFICE
ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL
Wednesday, 11 October, 2000

MS ALICE ROBINSON (instructed by Brachers, Maidstone, Kent ME16 8IH) appeared on behalf of the Appellant
JONATHON KARAS and RICHARD BARRACLOUGH (instructed by the Treasury Solicitor, London SW1H) appeared on behalf of the Respondent

MR DUNCAN OUSLEY QC:
This is an appeal under s289(1) Town and Country Planning Act 1990 against the decision of an Inspector dismissing the Claimant's appeal against an enforcement notice issued by Maidstone Borough Council on 19th March 1999. Three enforcement notices were the subject of decisions in the same letter by the Inspector. I am concerned only with Appeal B, which was made in respect of an enforcement notice, which, as corrected by the Inspector, alleged that there had been an breach of planning control by "the partial erection of a dwelling house," described as Building A. The notice required the demolition of the building and the removal of all the resultant materials.
The Claimant's appeal raised a number of issues but it is the way in which the Inspector approached the appeal on ground (d) of s174(2) of the 1990 Act which gives rise to the challenge.
There was no dispute but that the building had been in the state it was in at the time of issue of the enforcement notice for at least 4 years.
The issue before the Inspector was whether for the purposes of s171B(1) of the 1990 Act, enforcement action could no longer be taken because for the 4 years preceding 19th March 1999, "the operations were substantially completed".
The Inspector approached the matter as if the relevant question for the purposes of an appeal on ground (d), was whether the dwelling house had been substantially completed in 1995. He held that it had not been substantially completed. He put it in this way:
"28 The four-year period does not begin until the whole operation of creating the dwelling house is substantially completed.
29. For a dwelling house, what is substantial completion is likely to entail finishing the external wall, tiling, woodwork, glazing and guttering. Some internal finishes may remain to be carried out (paragraph 2.80 of circular 10/97). Building A has no glazing or guttering, no ground floor or access to the first floor, no service fittings or internal finishes. As a matter of fact and degree, I consider that Building A is not a substantially completed dwelling house. The four year period for immunity from enforcement action for this incomplete structure has not commenced. The appeal on ground (d) does not succeed."
In brief, the Claimant contends that this approach is wrong in law and that the completed building, against which substantial completion has to be judged, is not a dwelling house including its interior finishes nor indeed a building capable of occupation as a dwelling house, but rather is a building in respect of which any remaining works fall outside the definition of "development" in s55(1) of the 1990 Act or inside the scope of the exclusions from "development" in s55(2)(a).
On that latter approach, uncompleted interior finishes and works of improvement or alteration to the building affecting only its interior, or not materially affecting its external appearance, would not be relevant to the question of whether the "building operations" had been completed, and even less so to whether they had been substantially completed.
The relevant statutory provisions are as follows.
s171A which defines what is a breach of planning control, in respect of which an enforcement notice may issue, states:
171A Expressions used in connection with enforcement
"(1) For the purposes of this Act -
(a) carrying out development without the required planning permission; or
(b) failing to comply with any condition or limitation subject to which planning permission has been granted,
constitutes a breach of planning control."

s171B(1) contains the time limit after which enforcement action in respect of building operations cannot be taken. This is the provision invoked by an appeal under s174(2)(d).

171B Time limits
"(1) Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed."
s55(1) defines "development" and s55(2)(a) excludes certain activities from what might otherwise have been the scope of building operations.
s55 Meaning of "development" and "new development"
"(1) Subject to the following provisions of this section, in this Act, except where the context otherwise requires, "development", means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land."
s55(1A) defines "building operations":
"(1A) For the purpose of this Act "building operations" includes -
(a) demolition of buildings;
(b) rebuilding;
(c) structural alterations of or additions to buildings; and
(d) other operations normally undertaken by a person carrying on business as a builder."
"s55(2)(a) The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land -
(a) the carrying out for the maintenance, improvement or other alteration of any building of works which -
(i) affect only the interior of the building; or
(ii) do not materially affect the external appearance of the building."
Miss Robinson, who appeared for the Claimant, submitted that the breach of planning control was development by "building operations" which required, but lacked, planning permission. s55(1) defines development for which planning permission was required under s57 as including "building operations", and s55(2)(a) excluded from that definition, the carrying out of building works for the maintenance, improvement or the alteration of any building which affected only its interior, or which did not materially affect its external appearance. "The operations" which had to be "substantially completed" for the purposes of s171B(1) were the "building operations" of which the breach of planning control consisted. Therefore, activities which were not development requiring planning permission were not operations which had to be completed, or substantially completed in order to start the four year period.
This, she submitted, made sense of the enforcement context in which the issue arose. The local planning authority would be in a position to serve an enforcement notice as the building took shape but once, in effect, the material external works had been substantially completed, the four year period would start to run. This would still leave the builder at risk for four years but thereafter would provide certainty in relation to that which the planning control system sought to strike at.
Miss Robinson contended that the advice given in paragraph 2.80 of Circular 10/97 "Enforcing Planning Control" on which the Inspector relied was wrong in law. It states:
"2.8 The term "substantially completed" in section 171B(1) of the 1990 Act put into statutory terms, for the avoidance of doubt, the Courts' interpretation of the provisions in section 172(4)(a), as originally enacted, as to the date from which the four-year period, within which enforcement action may be taken in respect of authorised operational development, starts. Judicial authority in the case of Ewen Developments Ltd v. SSE [1980] J.P.L. 404 established that in the case of a single operation, such as the building of a house, the four year period does not begin until the whole operation is substantially complete. What is substantially complete must always be decided as a matter of fact and degree. It is not therefore possible to define precisely what is meant by the term "substantially completed". Arguably, in the case of a house it is not substantially complete until all the external walls, roof-tiling, woodwork, guttering and glazing are finished but it might be regarded as substantially complete if only some external decorating work, remains to be done, particularly if use of the building for its intended purpose has started. All the relevant circumstances must be considered in every case."
She submitted that the judicial authority referred to, Ewen Developments Ltd v SSE, is not authority for the proposition attributed to it. Instead it is authority for the different proposition that where enforcement proceedings are taken against a single act of development, in that case the single engineering operation of constructing an embankment, it was not open to the developer to say that the enforcement notice should strike only at so much of that single operation as had been constructed within the four years preceding the issue of the enforcement notice, leaving the residue of the embankment intact. Thus the case relied on does not address "substantial completion" at all or the extent to which "operations" in the enforcement context include those works for which planning permission is unnecessary. It addresses whether an enforcement notice must leave intact that part of a single operation, which was development requiring planning permission, which had been undertaken more than four years before the notice was issued.
If Miss Robinson's submissions are right, it is clear that the Inspector's approach cannot be sustained and it would be necessary for the question of substantial completion to be addressed on a different basis. Some factors at least, which he relied upon, would appear to be irrelevant.
Mr Karas for the Secretary of State, supported by Mr Barraclough for Maidstone Borough Council, submitted that Circular 10/97 was correct in its approach for the following reasons. s171(B)(1) required building operations, ie operations carried out by builders to be looked at as a whole. Mr Karas submitted that those operations nonetheless had to be operations which required planning permission. Mr Karas submitted that the Inspector's conclusion that the operations were not substantially complete, as a matter of fact and degree, was correct because what remained to be done were building operations carried out by builders within s55(1) and s 55(1A)(d) and were not excluded by s55(2)(a).
Mr Barraclough went a little further, submitting that even if not all of the operations involved a breach of planning control, it was still necessary to look at the building activities as a whole and ask if they were substantially complete.
Both stressed the significance of looking at the activities or operations as a whole and derived support for that from Ewen Developments supra, saying that the significance of that case was its emphasis on the need to look at "operations" as a whole.
Mr Karas submitted that s55(2)(a) never applied to this building, so as to exclude from the general ambit of s55(1) those activities carried on by builders which included interior works. He submitted that s55(2)(a) only applied to works of maintenance, improvement or other alteration to a building, and that phraseology predicated a building which had already been completed. It could not operate so as to remove from development control those works which were necessary for or were part of the completion of the building in the first place.
On that basis, the Inspector's conclusions were unimpeachable conclusions on matters of fact and degree.
Ably though Mr Karas and Mr Barraclough presented their submissions, I do not accept them, preferring instead those of Miss Robinson.
In my judgment, the "operations" which must be substantially complete are "building operations", which amount to "development", and which are in breach of planning control. To the extent that building activities are not "development", within s55(1) they are not "operations" which have to be substantially completed for the four year period to start running. I accept the approach of Miss Robinson and Mr Karas on this issue and reject that of Mr Barraclough. Likewise, to the extent that s55(2)(a) excludes other operations from the scope of development, they too are not operations substantial completion of which is necessary for the four year period to start running.
I do not accept Mr Karas' limited approach towards s55(2)(a). It applies to "any building". So long as the feature in question has progressed sufficiently to be a "building" which Building A had, beyond question, s55(2)(a) applies to it. It would involve reading too much into the section to read in the words "completed", or other words to the like effect. So doing would offer no greater certainty but instead would only raise a series of other questions as to how one judged "completed" in that new context. This suggested interpretation derives no support from the purpose of the provision, nor from the purpose of the enforcement of planning control. It would lead to the impossible position of planning permission being required for maintenance or improvement works, which did not themselves constitute development, to buildings long immune from enforcement, if it could be said of them that the interior finishes had never been completed. It would be very odd if activities which involved no development in themselves, could by their absence prevent immunity arising for a breach of planning control, even after all the works requiring permission had been long completed.
I do not consider that s55(1A) assists Mr Karas either. The activities upon which he relies i.e. those normally undertaken by persons in business as builders still have to be "operations", and therefore still have to fall within s55(1) and avoid the exclusion in s55(2)(a). The internal finishes, for example, even if "operations" in s55(1A) are not "development", because of s55(2)(a).
I do not consider that the statutory words of s171(B) and s55(1) or (2) can be set aside by appeals to the need to look at the activities involved in building a dwelling house, as a whole. It is rather to the operational development as a whole that one looks in assessing substantial completion.. To my mind Ewen Developments is of no application to the issue with which the Circular had to grapple in paragraph 2.80, and with which I am concerned. Ewen Developments prevents a single piece of operational development being split up into parts completed before or after a four-year period. To split the single operation into parts would be wholly artificial and would make nonsense of the concept of operational development being completed or substantially completed. It does not deal with the question of the nature of "operations" in this context; it was dealing with a single operation - the erection of an embankment - all which involved a breach of planning control. That is not at all the same thing as saying that the interiors which do not constitute development have to be finished before those building operations which are in breach of planning control are completed. The remedy of the breach may carry with it the need to remove works which by themselves would not involve a breach of planning control i.e. it cannot be argued that the exterior can be required to be demolished only it leaves the interior intact. But that is not at issue here.
Accordingly, on Miss Robinson's first ground, this appeal succeeds and it will be necessary for "substantial completion" and the relevance of and weight to be attached to the various factors referred to by the Inspector will need to be reconsidered. Internal finishes are irrelevant, I do not know what "service fittings" meant. It is not the test either that the building operations are complete only when the dwelling is capable of occupation as such. The building operations are complete when those activities which require planning permission are complete; those operations are substantially complete at an earlier stage.
Miss Robinson's second ground is that the Inspector failed to reach a conclusion on an issue which arose at the Inquiry as to whether the absence of glazing was because the glass had been broken three or four times by vandals since 1990 and eventually never replaced, as the Claimant said, or whether the absence of glazing was because none had ever been put in, as the Council claimed. This issue is said to be a principal controversial issue upon which a reasoned conclusion had to be expressed, because if the building had been glazed at some point, more than four years before 1999, that would have been relevant to judging whether the building had been substantially complete, even though the glazing had subsequently been removed.
In my judgment, if a building has become substantially completed and then ceases to be substantially completed because for example fire destroys the roof, the four year period stops, and a new four year period will not start running, until once again the building is substantially completed. Those new operations of replacing the roof would be in breach of planning control, and there would be no immunity from enforcement control in respect of those surviving parts of what had ceased to be a substantially completed building. The building is only immune from enforcement provided it has remained substantially completed throughout the four year period preceding the issue of the enforcement notice or, as s171(B) more obviously contemplates, has moved from substantial to total completion during that period and has remained completed.
On that analysis, it was unnecessary for the Inspector to have reached a view on whether the glazing had been removed because of vandals or whether it had never been inserted at all. All that matters is that for at least the period of four years before the issue of the enforcement notice, the building had not been glazed. It would not be necessary for the Inspector to form a view as to the reason for the absence of glazing in order for him to reach a conclusion as to whether the building had been substantially completed.
Miss Robinson's complaint that the Inspector never considered whether glazing or guttering would be operational development is a matter upon which, on reconsideration, the Inspector may feel it necessary to reach a conclusion. But that will be a matter to be looked at in the light of this judgment as to the right approach. It is not a matter for the Court to judge.
Miss Robinson's third ground was that the Inspector's attention had been drawn on a number of occasions at the Inquiry and in the Claimants' closing submissions to an earlier appeal decision given by the Secretary of State reported in 1972 JPL 385. It related to whether a dwelling house was immune from development because of the extent to which it was completed. It was helpful to the Claimant in a number of respects: the building there was for practical purposes complete externally, the internal work, glazing and guttering were not regarded as necessary for the building to be a viable dwelling and the enforcement notice was also dealt with on the basis that immunity attached to that which had been erected more than four years previously.
The Inspector did not refer to this other decision nor give any reasons for distinguishing it. It is submitted by Miss Robinson that he ought to have done so because he was necessarily disagreeing with that decision, which was sufficiently closely related to the matters in issue in this appeal for the Inspector to be obliged to deal with it, distinguishing it if necessary. She relied upon the approach set out by Glidewell LJ in R v Secretary of State for the Environment ex parte Baber [1996] JPL 1034 CA especially at p 1040.
In my judgment, the submissions in response by Mr Karas and Mr Barraclough are correct. It is quite clear that the Inspector has followed the approach set out in Circular 10/97 because that is the up to date Government guidance. That guidance is clearly different from and at odds with the 1972 decision letter. The Circular relies upon Ewen Developments which was decided in 1980 and requires a different approach from that in the 1972 decision letter towards the immunity from enforcement of those parts of a single building erected more than four years before the enforcement notice. All the Inspector need have said to make the position explicit is that he was following the advice in Circular 10/97 which conflicted with the 1972 decision.
In my judgment, he did not need to say that because it is perfectly obvious to the informed reader that that is what he has done. This third ground fails.
I should add that the allegation that the Inspector had made his mind up in advance is baseless. The alteration to the enforcement notice by the insertion of the word "partial" was agreed as an accurate reflection of the Council's allegation. The Inspector's comment in paragraph 27 of his Decision Letter to the effect that he agrees that the building is best described as "a dwelling house in the course of construction" is a view expressed after he has read all the evidence and held his site visit. He would have known when writing that, what his conclusion on ground (d) was going to be. He analysed the position against current Government guidance, and if that guidance had been correct, his decision would have been unimpeachable, except perhaps in relation to interior finishes.
However, for the reasons which I have given, the guidance, and hence the Inspector, approached the issue of "substantial completion" in a way which was wrong in law.
For that reason, this appeal is allowed and the matter will be remitted to the Secretary of State for determination.