Town and country planning – Enforcement notice – Appeal – Enforcement notice issued by local authority for alleged breach of planning control – Notice alleging appellant landowner erected new building and boundary wall and fence without permission – Planning inspector appointed by respondent secretary of state dismissing appeal – Appellant appealing – Whether operations “substantially completed” before “relevant date” under section 174(2)(d) of Town and Country Planning Act 1990 – Appeal dismissed
The interested party local authority issued an enforcement notice alleging a breach of planning control at Dones View Farm, Northwich Road, Dutton, Northwich in that, without planning permission, the appellant had erected a new building together with a boundary wall and fence. One of the requirements in the notice was the demolition of the unauthorised building. The appellant’s appeal against that notice under section 174(2)(a), (b) and (d) of the Town and Country Planning Act 1990 was dismissed by an inspector appointed by the respondent secretary of state, following an inquiry.
Permission to appeal to the High Court under section 289 of the 1990 Act was granted on the single ground that the inspector had erred in law in dismissing the appeal under section 174(2)(d). The appellant argued 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. The High Court rejected that argument and dismissed the appeal: [2022] EWHC 2031 (Admin).
The appellant appealed. The basic question was whether the 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.
Held: The appeal was dismissed.
(1) It was for the inspector to establish whether particular works were merely works of repair or for the construction of a new building. The inspector was entitled to take into account the purpose of the building when considering whether its construction had been “substantially completed”. His conclusion, as a matter of evaluative judgment, that the building had been designed as a dwelling was based on secure findings of fact. The conclusion he reached in the light of them was reasonable and lawful.
The inspector’s decision letter had to be read fairly as a whole and three main conclusions stood out. First, a new building had been constructed in place of the original building, using some of the fabric of that original building but creating a new and “unified” structure. Secondly, the new building was, unmistakeably, a dwelling house in the course of construction. Thirdly, the operations involved in its construction were not “substantially completed” before the “relevant date”, and it was therefore not immune from enforcement.
The inspector’s approach to the crucial question in ground (d), whether the operations in question had been “substantially completed” before the “relevant date”, was legally impeccable. He had no doubt that this was a building designed for residential use, not agricultural.
(2) In Sage v Secretary of State for the Environment, Transport and the Regions [2003] 1 PLR 121, the emphasis Lord Hobhouse gave to the distinction between “purpose” and “intention” was not prompted by the idea that an inspector had to disregard any evidence of the developer’s subjective “intention”, but by the need to ensure that such evidence did not override or obscure the objective purpose of the structure itself, manifested in its own physical and design features. An inspector always had to focus on the “physical layout and appearance” of the building itself. What was required was an examination of the building’s “physical and design features”. But the intentions of a developer, whether self-declared or revealed by his own actions, were a consideration to which an inspector might lawfully have regard.
In that context, “purpose” and “intention” were not the same thing. The general context here was the inspector’s task of establishing what the structure in question really was. The specific context was the task of establishing, on all relevant evidence, whether the operations in question were “substantially completed” by a particular date. “Purpose” was the objective concept. It went to the question of whether, given its physical and design features, a building was, for example, a dwelling house or an agricultural building. “Intention” was the subjective aim or wish of the developer to construct and use the building as a dwelling or to construct and use it for agriculture. Purpose and intention would normally coincide. As in Sage, the developer’s intention to build a dwelling house would generally result in his designing the building to have the physical features of a dwelling house, not those of a barn. The purpose of the building would correspond to his intentions in constructing it as he did.
(3) On a fair reading of the decision letter, the inspector’s assessment was clear and entirely lawful. It concentrated on the structural work carried out by the appellant, whose effect, the inspector found, was to create a new building, and it dealt appropriately with the building’s purpose. The inspector considered the physical nature of the structure and the features of its design and was satisfied that this was a building designed for residential use. He did not subordinate that conclusion to a contrary view of the developer’s subjective intentions. He recognised that the appellant’s evident intention to build a dwelling house was consistent with his own view that the structure itself had the physical and design features of a dwelling house.
(4) The appellant’s appeal on ground (d) failed in two ways: (i) the inspector reached the conclusion that building operations which had resulted in a “new building” coming into existence had not been “substantially completed” before the “relevant date”; and (ii) he also concluded that those building operations had brought about structural changes necessary for residential occupation of the “new building”, though the project to create a new dwelling house on the site was still unfinished. Those two conclusions were the inspector’s “reasons” for concluding the appellant had not demonstrated that the operations involved in the construction of the “new building” were “substantially completed” before the “relevant date”. Both were reasonable and lawful conclusions underpinned by lawful findings of fact and were legally impregnable.
Kate Olley (instructed by Kingsley Smith Solicitors LLP) appeared for the appellant; Freddie Humphreys (instructed by the Treasury Solicitor) appeared for the respondent; The interested party did not appear and was not represented.
Eileen O’Grady, barrister
