In Sage v Secretary of State for the Environment, Transport and the Regions [2003] UKHL 22; [2003] 1 PLR 121, the House of Lords held that it was necessary to take a holistic approach when determining whether building works had been “substantially completed” for the purposes of section 171B(1) of the Town and Country Planning Act 1990. Lord Hope explained that this meant having regard to the entirety of the building operations that the person originally contemplated and intended to carry out. He said that if the person in question had stopped short of what he had contemplated and intended when he began the development, the building could properly be treated as an uncompleted building against which the four-year period set out in section 171B(1) had not yet begun to run.
The inspector whose job it was to determine the enforcement notice appeal leading to the proceedings under section 289 of the Act in R (on the application of Fidler) v Secretary of State for Communities and Local Government [2010] EWHC 143 (Admin); [2010] PLSCS 37 relied on that approach when dismissing the appeal.
There the appellant had built a house without planning permission within a shield of straw bales, the top of which was covered with a tarpaulin, with a view to concealing its construction and existence. He and his family moved in and, four years later, removed the straw bales. At that point the enforcement notice was issued, requiring the demolition of the house. The appellant contended that he had by then achieved immunity from enforcement action under section 171B(1).
The inspector disagreed, deciding that when considered as a whole the building operations had not been substantially completed until the straw bales had been removed. As a matter of fact and degree, they formed part of the totality of the building operations and they had to be removed before substantial completion could be achieved. The four-year period had therefore not expired when the enforcement notice was issued.
The High Court dismissed the section 289 appeal, holding that the inspector had been entitled to reach his findings of fact on the evidence. They were findings that fully justified his critical conclusion that the erection and removal of the straw bales formed part of the totality of the building operations that the appellant had originally contemplated and intended to carry out in order to deceive the local planning authority.
John Martin is a freelance writer
