Devine v Secretary of State for Levelling Up, Housing and Communities [2023] EWCA Civ 601; [2023] PLSCS 90 provides a useful reminder individual works of repair/improvement can cumulatively be construed as the construction of a new building and clarified that the intentions of a developer can be judged as a material consideration.
Barry Devine had purchased a site including a barn. Over several years, Devine carried out various works to the barn without planning permission. This included creating a new wing, removing bricks from the inner wall, replacing parts of the outer wall, erecting blockwork, replacing the roof, levelling the floor, and moving openings.
Cheshire West and Chester Council alleged the works amounted to construction of a new building and served an enforcement notice on Devine. He then sought to challenge the notice to the Planning Inspectorate. His appeal was rejected on the basis that:
the works did amount to construction of a new building; and
the works were not substantially complete four years prior to the date of the enforcement notice (and therefore the enforcement was taken within the relevant limitation period).
As a result, Devine sought determination from the Court of Appeal, which had to decide if the Planning Inspectorate had erred in law in reaching its conclusion.
Devine argued the inspector had erred in the following ways:
He had given weight to Devine’s subjective intention in carrying out the works when this should be an immaterial consideration.
He had considered substantial completion of the property as a “dwelling”, even though the enforcement notice only referred to a “building” and the construction of the new building was substantially complete outside of the four-year enforcement period and any works carried out after this point were for repair.
The court agreed with the inspector that the operations had not been substantially complete by the time enforcement action was taken by the council. At the time of enforcement there was still a lack of heating, ongoing electric work and the entire roof was yet to be replaced.
The court also found the intentions of a developer can be measured as a material consideration, and Devine’s intentions when carrying out the works were plainly to build a dwelling.
Consequently, the appeal was dismissed, and the enforcement notice upheld.
Elizabeth Mutter is a solicitor in the planning & environment team at Irwin Mitchell
