Barry Devine v Secretary of State for Levelling Up Housing and Communities
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 29 July 2022 |
| Neutral Citation | [2022] EWHC 2031 (Admin) |
| Docket Number | Case No: CO/4287/2021 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2022] EWHC 2031 (Admin)
Mr Justice Fordham
Case No: CO/4287/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN MANCHESTER
Kate Olley (instructed by Kingsley Smith Solicitors LLP) for the Appellant
Freddie Humphreys (instructed by GLD) for the Respondent
The Interested Party did not appear and was not represented
Hearing date: 25.7.22
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Introduction
This is an appeal in a planning case. It has arisen as follows. On 18 March 2019 the Interested Party, the local planning authority (“the LPA”), served an Enforcement Notice on the Appellant. That was pursuant to section 172 of the Town and Country Planning Act 1990 (“the 1990 Act”). It alleged a breach of planning control by the Appellant at a site known as Dones View Farm, in greenbelt land, by this “unauthorised development”:
Without planning permission the erection of new building … and the erection of boundary wall and fence …
The Appellant lodged an appeal against the Enforcement Notice to the Respondent (“the Secretary of State”), pursuant to section 174 of the 1990 Act. The grounds of appeal raised three issues. One, pursuant to section 174(2)(a), and was that planning permission ought in any event to be granted, in relation to the wall and fence. Another, pursuant to section 174(2)(b), was that operations carried out by the Appellant at the site since he purchased it as a disused barn in 2000 did not involve any “new building” (“the New Building Issue”). The third issue (“the Time Limit Issue”), pursuant to section 174(2)(d), was this. Whether or not any operations carried out by the Appellant at the site did constitute a breach of planning control, in light of the date when the Notice was issued, no enforcement action could be taken in respect of any breach. The Time Limit Issue invokes section 171B of the 1990 Act (“time limits”). Specifically, section 171B(1), which provides
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 .
The date four years before the Enforcement Notice – described in this case as “the Relevant Date” was 18 March 2015.
The appeal against the Enforcement Notice was considered by an Inspector, acting for the Secretary of State. There was a three day inquiry. Oral evidence was given by eight witnesses on behalf of the Appellant (including the Appellant himself), and two witnesses on behalf of the LPA. Relevant documents were considered. Submissions were made by Counsel for the Appellant and Counsel for the LPA, in writing and orally. The Inspector dismissed the Appellant's appeal on all three issues by a Determination dated 23 November 2021.
The Appellant appeals against the Inspector's Determination to this Court. That is an appeal “on a point of law” (section 289(1) of the 1990 Act). The application for permission to appeal to this Court advanced three grounds, reflecting each of the three issues which had been pursued to the Inspector. On 15 March 2022 Tim Smith, sitting as a Deputy High Court Judge, granted permission to appeal on the ground of appeal raising the Time Limit Issue (section 174(2)(d)). He refused permission to appeal on the grounds of appeal raising the New Building Issue (section 174(2)(d)) and the remaining issue (section 174(2)(a)). So, the issue on this appeal is whether the Inspector made a decision erroneous in point of law in concluding that the relevant building operations had not been “substantially completed” before the Relevant Date (18 March 2015).
Sage
One of the authorities cited to the Inspector and the only authority cited to me is Sage v Secretary of State for the Environment Transport and the Regions [2003] UKHL 22 [2003] 2 All ER 689. There, the House of Lords was concerned with an appeal invoking section 174(2)(d) and section 171B(1). The inspector in the Sage case had, unassailably, found that “as a matter of fact and degree” the building on which the building operations had taken place was “not an agricultural building” but “a dwelling house in the course of construction” (§15). The appellant in Sage had not done any further building work during the four years prior to the enforcement notice (§12). Regarding whether the relevant building operations were to be regarded as “substantially completed”, the High Court and Court of Appeal had each asked this question: whether “the work needed to complete the structure as a dwelling house was such as of itself to require planning permission” (§§17, 21–22). The House of Lords concluded that this was a legally erroneous approach. The legally correct approach was a “holistic” one (§§22–27) which looked at the whole operation and asked whether that operation had been “substantially completed”. In Sage it had not been, because the construction of the dwellinghouse was unfinished and further building operations were needed to complete it.
Both Counsel emphasised the authoritative wisdom expressed in this passage from the speech of Lord Hobhouse, with whom the rest of the Court agreed ( Sage §14):
The inspector rightly did not investigate the intentions of Mr Sage at various stages in the history nor the uses he had made of the structure from time to time. The character and purpose of a structure falls to be assessed by examining its physical and design features. The relevance of the assessment is to determine whether or not the building operation is one requiring planning permission .
It was common ground that “character and purpose” are assessed by reference to “physical and design features”, objectively, and not through an investigation of subjective intentions. It was also common ground that Lord Hope's observations in Sage at §6 (about contemplation and intention, being derived from sources especially physical features and design) were consistent with, and cannot detract from, this.
Reasoning on the Time Limit Issue
The Inspector's essential reasoning on the Time Limit Issue was as follows:
37. To succeed on this ground the appellant needs to show, on the balance of probability, that the building operations comprising the erection of the building and/or the boundary wall and fence were substantially completed on or before 18 March 2015 (the Relevant Date), 4 years before the date on which the notice was issued .
The new building
38. The building lacks heating and sanitation, electric work is incomplete, and doors and windows have yet to be inserted. The appellant has documented building operations that were undertaken after the Relevant Date, the most significant being the entire roof over the northern and western wings. Other works undertaken after the Relevant Date include the final restoration of bricked up windows, alterations to the south gables of the eastern and western wings, and the replacement, re-pointing, and cleaning of brickwork throughout. While the appellant states these works did not continue beyond 2017, another statement indicates that building works were still being undertaken in 2019'. The author of that statement was not called as a witness, so it was not possible to test this ambiguity, and greater weight must be afforded to the evidence that was affirmed .
39. Nevertheless, significant building operations that were part of the erection of the new building were undertaken after the Relevant Date. Evidence of the appellant's intentions for the building at that time was not presented. However, he affirmed that his retirement in 2015, the year of the Relevant Date, had given him more time to devote to ‘the project’. A precise retirement date was not given, and the nature of ‘the project’ was not explained. However, in the context of the appellant ending his business use of the building, it is reasonable to assume the project was concerned with its future use .
40. The possibility that the changes to the structure deemed necessary for residential occupation, which were part of the erection of the new building, had been achieved without forethought is too slight to be given significant weight. In contrast, the building operations carried out from 2015 to 2017 would be consistent with an objective of creating a building suitable for residential use. That intention was repeatedly stated in the 5 applications made in 2018, after those works had been completed .
41. The construction of the eastern wing in its original form was substantially completed before the Relevant Date. While there is little or no evidence of that original form to compare with what existed when the notice was issued, the appellant's Hearing Plan (CD 7.1) indicates that significant elevational changes were undertaken. Nevertheless, by 2018, and like the rest of the building, any structural and elevational changes to the eastern wing that the appellant deemed necessary for future residential use had been carried out. This must be assumed to include the replacement of roof tiles with slates” .
42. The building works that resulted in the northern and western wings becoming a new building were not substantially completed on or before the Relevant Date. As a matter of fact and degree, and considering the changes made to it from 2015 onward, the eastern wing is not an extension to a building that no longer exists as a...
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Barry Devine v Secretary of State for Levelling UP, Housing and Communities
...COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE KING'S BENCH DIVISION PLANNING COURT MR JUSTICE FORDHAM [2022] EWHC 2031 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Kate Olley (instructed by Kingsley Smith Solicitors LLP) for the Freddie Humphreys (ins......