Enforcement notice – Appeal – Immunity from enforcement action – Sections 171B and 174(2)(d) of Town and Country Planning Act 1990 – Appellant claiming more than four years elapsing since substantial completion of extension so as to render it immune from enforcement – Whether inspector erring in failing to take account of builder’s evidence as material consideration – Whether evidence showing substantial completion of extension at earlier date – Appeal dismissed
In November 2006, the second defendant council refused an application by the claimant for a single-storey rear extension to her bungalow. The claimant’s appeal against that decision was dismissed by the first defendant’s planning inspector in September 2007. The inspector’s decision found that, at the date of the appeal, the development had reached an advanced stage of construction. The claimant made further applications for planning permission in October 2007 and February 2009; the second defendants refused the first and declined to determine the second. They then issued an enforcement notice alleging that the erection of the extension was a breach of planning control and requiring its demolition.
The claimant appealed against the notice under section 174(2) of the Town and Country Planning Act 1990. She contended that the extension had become immune from enforcement action within the meaning of ground (d) in section 174(2) because more than four years had elapsed since its substantial completion, such that the time limit for enforcement in section 171B had expired. She claimed that the extension had been substantially completed by January 2002, but that, owing to defects, the roof timbers and roof had later been replaced. Rejecting that claim, the inspector concluded, in reliance on aerial photographs taken in 2003 and the earlier inspector’s finding as to the state of the extension in 2007, that the extension had not existed for four years prior to the issue of the enforcement notice. She accordingly dismissed the appeal. She also dismissed a further ground of appeal under section 174(2)(f), finding that it had been unreasonable for the appellant to advance that ground, and awarded costs against the claimant.
The claimant appealed. She submitted that: (i) the inspector’s finding on ground (d) was vitiated by a failure to take into account a material consideration, namely evidence from the claimant’s builder regarding the replacement of the roof; and (ii) her conclusion on ground (f) was based on a material error of fact.
Held: The appeal was dismissed.
Although the builder’s evidence was a material consideration and the inspector had neither referred to it in her decision nor given reasons for rejecting it, her decision should not be quashed because the defendants had satisfied the test of showing that the inspector would have come to the same conclusion in any case: R v Secretary of State for the Environment, ex parte Brent London Borough Council [1982] QB 593 applied. Matters of planning judgment came within the exclusive province of the inspector and the weight, if any, to be attached to a material consideration in determining a planning appeal was entirely a matter for her as decision maker: Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 EGLR 147; [1995] 27 EG 154 applied. The inspector had found that the aerial photographs taken in 2003 showed no extension on the site, contrary to the claimant’s case that the extension was materially completed by January 2002. The evidence of the builder did not undermine that evidence.
Moreover, even if the builder’s evidence were to be accepted uncritically, it would not show that the extension was substantially completed in January 2002. The test of substantial completion required a holistic approach and regard should be had to the totality of the operations that were originally contemplated and intended to be carried out: Sage v Secretary of State for the Environment, Transport and the Regions [2003] UKHL 22; [2003] 1 PLR 121 applied. The builder’s evidence was inconclusive as to the internal state of the extension and, in the absence of any information as to the nature of the building that was alleged to have been substantially completed, would have made no difference to the inspector’s decision to dismiss the appeal. The inspector’s reasons for doing so were comprehensive and comprehensible. Further, her conclusion that it was unreasonable for the claimant to use the ground (f) point, notwithstanding that the extension was outwith the requirements of permitted development, did not constitute an error of law and her decision on the costs issue could not be impugned.
Toby Fisher (instructed by Richards Solicitors) appeared for the claimant; Sarah Hannett (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendant did not appear and was not represented.
Sally Dobson, barrister
