Sage v Secretary of State for the Environment, Transport and the Regions and another

JurisdictionUK Non-devolved
JudgeLORD HOPE OF CRAIGHEAD,LORD NICHOLLS OF BIRKENHEAD,LORD HOBHOUSE OF WOODBOROUGH,LORD SCOTT OF FOSCOTE
Judgment Date10 April 2003
Neutral Citation[2003] UKHL 22
CourtHouse of Lords
Date10 April 2003
Sage
(Respondent)
and
Secretary of State for the Environment, Transport and the Regions

and others

(Appellants)

[2003] UKHL 22

The Appellate Committee comprised:

Lord Nicholls of Birkenhead

Lord Hope of Craighead

Lord Hobhouse of Woodborough

Lord Scott of Foscote

Lord Rodger of Earlsferry

HOUSE OF LORDS

LORD NICHOLLS OF BIRKENHEAD

My Lords,

1

I have had the opportunity of reading a draft of the speech of my noble and learned friend Lord Hobhouse of Woodborough. I agree that, for the reasons he gives, this appeal should be allowed.

LORD HOPE OF CRAIGHEAD

My Lords,

2

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hobhouse of Woodborough. I agree with it, and for the reasons which he has given I too would allow the appeal.

3

As my noble and learned friend has explained, Mr Sage's primary argument at first instance was that the building was an agricultural building for which he did not need planning permission. This was a pure question of fact, and it was resolved against him conclusively by the inspector's finding that the building was not an agricultural building but was best described as a dwelling house that was in the course of construction.

4

This led to the alternative argument that the notice was out of time because the operations that must be substantially completed for the purpose of section 171B(1) of the Town and Country Planning Act 1990 comprise the operations which constituted a breach of planning control, or (as it was put) the operational development, and not the whole operation of completing the dwelling house. The inspector's view was that the four year period did not begin until the whole operation of creating the dwelling house was substantially completed. He then held, treating the question as one of fact and degree, that the building in this case was not a substantially completed dwelling house. Here again the inspector's decision on the facts went against Mr Sage and the contrary is not longer arguable. The question which remains is whether the inspector was right when he said that the four year period did not begin until the whole operation of creating the dwelling house was substantially completed.

5

Mr Sage's argument is that the reference in section 171B(1) to the date "on which the operations are substantially completed" has to be read in the light of the wording of the other relevant sections in the 1990 Act, and that by tracing the language of that subsection back through section 171A(1)(a) the reader is required to bring into account the definition of "development" in section 55(1) of the Act, those operations which section 55(2)(a) says are not to be taken to involve development and the definition of the word "building" in section 336(1). If this approach is right the position is, as Keene LJ explained in paras 27–31 of his judgment, capable of being resolved quite simply by saying that what have to be substantially completed are those operations which amount to a breach of planning control and that operations and works which do not amount to development because they fall within section 55(2)(a) are not to be taken into account. On this approach, it does not matter that the inspector did not think that the building was a dwelling house. All one needs to find is that there is a building which has been erected in breach of planning control.

6

I was initially attracted to this approach, as it seemed to me to be consistent with the language of the statute and to be unlikely, as Keene LJ said in para 32 of the judgment, to give rise to practical difficulties. But I have in the end been persuaded, with respect, that the language of the statute is open to a different interpretation and that it makes better sense of the legislation as a whole to adopt the holistic approach which my noble and learned friend has described. What this means, in short, is that regard should be had to the totality of the operations which the person originally contemplated and intended to carry out. That will be an easy task if the developer has applied for and obtained planning permission. It will be less easy where, as here, planning permission was not applied for at all. In such a case evidence as to what was intended may have to be gathered from various sources, having regard especially to the building's physical features and its design.

7

If it is shown that all the developer intended to do was to erect a folly, such as a building which looks from a distance like a complete building – a mock temple or a make-believe fort, for example – but was always meant to be incomplete, then one must take the building when he has finished with it as it stands. It would be wrong to treat it as having a character which the person who erected it never intended it to have. But if it is shown that he has stopped short of what he contemplated and intended when he began the development, the building as it stands can properly be treated as an uncompleted building against which the four year period has not yet begun to run.

8

It must be emphasised that it is not for the inspector to substitute his own view as to what a building is intended to be for that which was intended by the developer. But that was not what the inspector did in this case. It was not just that the building looked to him like a dwelling house that was in course of construction. His conclusion was supported, in his view, by an application which Mr Sage had made in 1994 to use the building for tourist accommodation and by his finding that that remained Mr Sage's stated intention. These matters were relevant to the question which he had to decide, and in my opinion he was entitled on the facts which he found to reach the conclusion which he did.

LORD HOBHOUSE OF WOODBOROUGH

My Lords,

9

On 19th March 1999, the Maidstone Borough Council (the Council) as the relevant planning authority issued and served on Mr Sage an enforcement notice (the Notice) under Part VII of the Town and Country Planning Act 1990 (the Act). The Notice informed him that the Council considered that he was in breach of planning control in erecting (or, as later amended, partially erecting) a dwelling house and requiring its removal. Mr Sage appealed raising various grounds under s.174(2). Besides applying for planning permission ex post facto, the two main grounds of his appeal were firstly that the building was an agricultural building and did not require planning permission and, secondly, that the notice had been served outside the four year time limit permitted by s.171B(1), a section inserted into the Act by the Planning and Compensation Act 1991.

10

Section 171B(1) 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."

This provision followed the lead given by Mr Robert Carnwarth QC in his Report to the Secretary of State for the Environment (Enforcing Planning Control: February 1989) which called for greater simplicity and clarity in the law and procedures of enforcement which had become excessively technical and complex and open to evasion and abuse. There can be no doubt that the underlying purpose behind s.171B(1) was to introduce a single easily applied limitation period for operations. Section 171B(2) and (3) adopted in respect of change of use and other breaches four and ten year periods respectively, running in either case from the date of the breach.

11

The point raised by this appeal by the Council to your Lordships' House concerns the construction of s.171B(1) and the starting point of the four year period –ie "the date on which the operations were substantially completed". Mr Sage contends that it means the date after which the building work remaining to be done would no longer itself involve a breach of planning control, because, if taken on its own, it would not require planning permission. The judge, Deputy Judge Ouseley QC, and the Court of Appeal summarised the point in a brief sentence:

"The building operations are complete when those activities which require planning permission are complete."

The Council on the other hand argue for a holistic construction, asking: has the building been substantially completed and, if so, when? The Council, like the inspector, adopt the passage in the Ministry Circular No.10/97, paragraph 280.

"… 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. … All the relevant circumstances must be considered in every case."

The inspector, deciding in favour of the Council and upholding the Notice, applied the latter approach; the judge and the Court of Appeal (Schiemann LJ, Keene LJ and Sir Murray Stuart-Smith), deciding in favour of Mr Sage, preferred the former.

12

The inspector heard Mr Sage's appeal (together with two other appeals concerning the same parties) over the space of two days including a view of the relevant premises. Both parties were legally represented and adduced oral and written evidence. It was accepted by the Council that Mr Sage had not done any further building work on the relevant structure during the last four years before the Notice was served. It was also common ground that it was an 'operation' case falling within s.171B(1) not a change of use case under subsection (2).

13

The inspector started by considering Mr Sage's contention that it was an agricultural structure and therefore he had never needed...

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