Barry Devine v Secretary of State for Levelling UP, Housing and Communities
| Jurisdiction | England & Wales |
| Judge | Sir Keith Lindblom,Lord Justice Singh,Lady Justice Elisabeth Laing |
| Judgment Date | 25 May 2023 |
| Neutral Citation | [2023] EWCA Civ 601 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-001599 |
and
[2023] EWCA Civ 601
Sir Keith Lindblom
(Senior President of Tribunals)
Lord Justice Singh
and
Lady Justice Elisabeth Laing
Case No: CA-2022-001599
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
MR JUSTICE FORDHAM
Royal Courts of Justice
Strand, London, WC2A 2LL
Kate Olley (instructed by Kingsley Smith Solicitors LLP) for the Appellant
Freddie Humphreys (instructed by the Treasury Solicitor) for the Respondent
The Interested Party did not appear and was not represented
Hearing date: 29 March 2023
Approved Judgment
This judgment was handed down remotely at 4.45pm on 25 May 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Sir Keith Lindblom, Senior President of Tribunals:
Introduction
The basic question in this case is whether an inspector who dismissed an appeal against an enforcement notice alleging the unauthorised construction of a “new building” in place of an existing barn on a site in the Green Belt erred in law in concluding that, when the notice was issued, the local planning authority could properly take enforcement action against that breach of planning control. The relevant legal principles are well established.
With permission granted by Coulson L.J., the appellant, Mr Barry Devine, appeals against the order of Fordham J., dated 29 July 2022, dismissing his appeal under section 289 of the Town and Country Planning Act 1990 against the decision of an inspector appointed by the respondent, the Secretary of State for Levelling Up, Housing and Communities, upholding an enforcement notice issued by the interested party, Cheshire West and Chester Council, under section 172 of the 1990 Act. The notice alleged a breach of planning control at Dones View Farm, Northwich Road, Dutton, Northwich. It was served on Mr Devine on 18 March 2019.
The breach of planning control alleged was “[without] planning permission the erection of a new building … and the erection of a boundary wall and fence …”. One of the requirements in the notice was the demolition of “the unauthorised building”. Mr Devine appealed on grounds (a), (b) and (d) in section 174(2). The inspector held an inquiry into that appeal over three days in July and October 2021, conducting his site visit on the third day. In his decision letter, dated 23 November 2021, he dismissed the appeal on all three grounds. Permission to appeal to the High Court under section 289 was granted, but only on the ground that the inspector had erred in law in dismissing the appeal under section 174(2)(d). Mr Devine's argument was that the inspector was wrong to conclude that the operations in question were not “substantially completed” more than four years before the enforcement notice was issued, and to conclude that the development therefore did not enjoy immunity from enforcement under section 171B. Fordham J. rejected that argument and dismissed the section 289 appeal.
The main issue in the appeal
The single ground of appeal to this court is that “[the] learned judge erred in law in finding that it was open to the planning inspector to find that the repair of a roof already in situ meant that the building was not already substantially completed more than [four] years before the service of the enforcement notice”. In effect, then, the main issue for us to decide is whether the inspector's approach to the ground (d) appeal was unlawful.
Background
Dones View Farm is in the North Cheshire Green Belt. Mr Devine bought the site in 2000. When the unauthorised works began, there was a barn on it, erected in the late 19 th century. Over the years Mr Devine undertook various building works, without any grant of planning permission. Between 2001 and 2004 he built a new wing, the “East wing”, thus creating a “U”-shaped building. Other work followed. According to Mr Devine, this was the repair and improvement of the building, including the removal of bricks from the inner wall to replace parts of the outer wall, and the erection of blockwork inside. It was work he could do himself, because he was a builder by trade. In his evidence at the inquiry he said the repair of the roof, the replacement of concrete lintels with metal, the levelling of the floor and the moving of openings were all works of repair to the original building, not its reconstruction. The building was still, he said, the barn erected about 125 years ago. In 2018 he made five applications for planning permission, proposing various works of conversion to the building and its change of use to use as a single dwelling.
Section 55 of the 1990 Act
Section 55 of the 1990 Act defines “development” as including “the carrying out of building … operations … on … land” (subsection (1)). It provides that “building operations” include the “demolition of buildings”, “rebuilding”, “structural alterations of or additions to buildings”, and “other operations normally undertaken by a person carrying on business as a builder” (subsection (1A)), but that certain operations “shall not be taken … to involve development of the land”, including “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” (subsection (2)(a)).
Sections 171B(1) and 174(2)
Section 171B(1) of the 1990 Act provides:
“(1) Where there has been a breach of planning control consisting in the carrying out without planning permission of building … operations … on … 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.”
Section 174(1) provides that “[a] person having an interest in the land to which an enforcement notice relates … may appeal to the Secretary of State against the notice …”. Subsection (2) provides:
“(2) An appeal may be brought on any of the following grounds –
(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted …;
(b) that those matters have not occurred;
…
(d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters;
…”.
Much of the argument before us drew on the decision of the House of Lords in Sage v Secretary of State for the Environment, Transport and the Regions [2003] 1 W.L.R. 983 – in particular the speech of Lord Hobhouse of Woodborough, with which Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Scott of Foscote and Lord Rodger of Earlsferry all agreed.
On the question of substantial completion, Lord Hobhouse said (in paragraphs 13 and 14):
“13. The inspector started by considering Mr Sage's contention that it was an agricultural structure and therefore he had never needed any planning permission to erect it. He considered how it was constructed and concluded that it was constructed with domestic not agricultural features, as a dwelling not as a building to be used for agricultural purposes. … He applied the test of physical layout and appearance … .
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. The actual use made of the building does not alter the answer to be given. Keeping a pig in the sitting-room or hens in the kitchen does not turn a dwelling house into an agricultural building even if the humans move out. Permission for a change of use may have to be applied for but that would be a separate question. The starting point for considering the permitted use of a new structure is the character of the building for which permission has been given or does not require to be given (section 75(3)): “… the permission shall be construed as including permission to use the building for the purposes for which it is designed.””.
The inspector had concluded that, “[as] a matter of fact and degree, … having regard to its layout and appearance, [this building] is not an agricultural building and was not designed as such”, but “is best described as a dwelling house that is in course of construction” (paragraph 15).
On the remaining work to the exterior of the building, Lord Hobhouse said this (in paragraph 19):
“19. It would be a question of fact whether the external work still to be done would have had a material effect on the building's appearance. But that question would only become significant if the work was carried out “for the maintenance, improvement or other alteration” of the building. Work carried out by way of completing an incomplete structure would not come within exception (a) [in section 55(2)]. So, once it has to be accepted, in accordance with the inspector's finding, that the structure was a dwelling house in the course of construction, it follows that the work would be properly described as work carried out in the course of completing the construction of the building. Exception (a) clearly contemplates and involves a completed building which is to be maintained, improved or altered. …”.
Lord Hobhouse referred to the “holistic approach” implicit in what an enforcement notice relating to a single operation may require. So “[where] a lesser...
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