Development — Planning permission Partly built structure — Completion notice expiring before works finished — Planning permission withdrawn — Whether permission for works already carried out remaining valid — Appeal dismissed
In June 1993, the second respondent obtained planning permission to erect a detached garage at the rear of his house. The development was to start within five years from the date of the planning permission.
The construction was begun but was stopped in 1994, after which no further works were carried out. The uncompleted structure was an eyesore and attracted complaints from neighbours. In 2001, the appellant council served a completion notice on the second respondent, under section 94 of the Town and Country Planning Act 1990, stating that the garage should be completed within 12 months, after which the planning permission would cease to have effect. The first respondent confirmed the notice under section 95 of the Act, but extended the completion period to 31 December 2003.
The second respondent failed to complete the development. The appellants, purporting to act under section 172 of the Act, issued an enforcement notice stating that the part-built structure was not authorised under any extant planning permission and they required its demolition and the removal of resultant debris within three months.
The second respondent appealed. The first respondent appointed an inspector, who recommended that the enforcement notice should be upheld, rejecting the suggestion that planning permission should be granted for the part-built structure since it was an untidy and visually intrusive feature that should not be allowed to remain on the site in its current state.
The first respondent did not accept that recommendation but allowed the appeal and quashed the enforcement notice on the ground that, by reason of the wording of section 95(5), the works subject to the enforcement notice were not in breach of planning control because they had the benefit of planning permission. The appellants appealed.
Held: The appeal was dismissed.
Where a development for which planning permission had been granted was not completed, despite the service of a completion notice, the works that had been carried out prior to the expiry of the completion notice remained a development authorised by the planning permission. Section 95(5) supported that view. The building works undertaken by the second respondent had been carried out under the permission and they were therefore lawful. Thus, permission for those works was unaffected by the enforcement notice: Copeland Borough Council v Secretary of State for the Environment [1976] 2 EGLR 131; (1976) 239 EG 503 and Sage v Secretary of State for the Environment [2003] UKHL 22; [2003] 1 PLR 121 distinguished.
The second respondent had not acted in breach of the planning permission but had merely failed to complete the development. It would be a hard result if planning permission ceased to have effect altogether with regard to a development that had been substantially completed before the expiry of a completion notice, especially where, inter alia, the powers of removal under section 102, were available to the appellants. Moreover, the loss of the benefit for the future of the original planning permission would amount to a significant sanction to those in the second respondent’s position.
Morag Ellis (instructed by Sharpe Pritchard, acting as London agent for Cardiff County Council) appeared for the appellants; Clive Lewis (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondent did not appear and was not represented.
Eileen O’Grady, barrister
