Enforcement notice – Section 171B of Town and Country Planning Act 1990 – Circular 10/97 – Builder claiming that house substantially completed before start of four-year period – House without glazing or guttering at all material times – Inspector following advice in circular and ruling against builder – Builder claiming that advice in circular based upon wrong legal test – Builder’s appeal allowed
In March 1999 the second defendants, Maidstone Borough Council, issued an enforcement notice against the claimant, alleging a breach of planning control by “the partial erection of a dwelling house” and requiring the demolition of the building so erected. The claimant appealed to the Secretary of State, relying upon section 171B of the Town and Country Planning Act 1990 and contending that no enforcement action could be taken as the relevant building operations had been “substantially completed” more than four years before the council took their action. The inspector found as a fact that the building had no glazing or guttering, no ground floor or access to the first floor and no service fittings or internal finishes. Taking the approach advised in para 2.80 of Circular 10/97, entitled “Enforcing Planning Control”, the inspector held as a matter of fact and degree that the building was not a substantially-completed dwelling-house.
The claimant appealed, contending that the approach so taken was wrong in law. It was submitted that: (i) on a correct approach, the only works that had to be substantially completed were works amounting to “development” within section 55 of the Act, and, more particularly, “building operations” within the meaning of section 55(1A); and (ii) by virtue of section 55(2)(a), such operations did not include works that affected only the interior of the building, or that did not materially affect the external appearance of the building.
Held: The appeal was allowed.
1. The advice in the circular was based upon an incorrect reading of Ewen Developments Ltd v Secretary of State for the Environment [1980] JPL 404, which did no more than decide that, in looking at the four-year period, it was not permissible to split a single piece of operational development into parts completed before or after the start of the period. The claimant was accordingly correct in contending that building operations were completed when those activities that required planning permission were completed.
2. On the rehearing, it would be for the inspector to decide whether the (outstanding) glazing or guttering amounted to an operational development. In so deciding, the inspector would not be concerned to ascertain whether glazing, once installed, had been removed by vandals, the only material question being whether the building had been substantially completed throughout the relevant four-year period.
Alice Robinson (instructed by Brachers, of Maidstone) appeared for the claimant; Jonathan Karas (instructed by the Treasury Solicitor) appeared for the first defendant; Richard Barraclough (instructed by the solicitor to Maidstone Borough Council) appeared for the second defendants.
Alan Cooklin, barrister
