Enforcement notice — Breach of planning control — Town and Country Planning Act 1990 — Immunity period in section 171B — Meaning of “substantial completion” — Whether four-year period applied to render construction immune from enforcement action — Whether “operations” in section 171B confined to operations amounting to development within section 55(1) — Whether four-year period running from date of substantial completion of intended development or date upon which operations constituting development completed
In 1994, the respondent completed the construction of a building with an entrance door and fenestration typical of a dwellinghouse. However, it was unfit for habitation: no stairway was installed, the floor at ground level was rubble, there were no service fittings and none of the windows were glazed. In March 1999, the appellant council issued and served an enforcement notice on the respondent, alleging breach of planning control on the basis that the respondent had erected a building without planning permission. The respondent appealed against the notice, relying upon section 171B of the Town and Country Planning Act 1990. He contended, inter alia, that the building had been substantially completed for more than four years prior to the date of the enforcement notice and was immune from enforcement action. The inspector took the view that the four-year period did not begin until the whole operation of creating the dwellinghouse was substantially completed, and upheld the enforcement notice. On appeal to the High Court and a further appeal to the Court of Appeal, both courts accepted that “the building operations are complete when those activities, which require planning permission, were complete”. The works necessary to complete the building as a dwellinghouse were either all internal work or work that did not materially affect the external appearance of the building, and were not development, and therefore did not postpone the commencing of the four-year period for enforcement action. The council appealed.
Held The appeal was allowed.
The inspector was correct to conclude that the four-year period did not begin until the whole operation of creating the dwellinghouse was substantially completed. A holistic approach to the interpretation of the legislation was required. An enforcement notice must be served within four years of the date upon which the intended building operations |page:122| were substantially completed. The four-year period did not begin when those operations amounting to development were completed; although the further operations necessary to complete the building as a dwelling may not have amounted to development, those further operations were intended and the commencement of the four-year period did not begin until those further operations were completed. Per Lord Hobhouse: An application for planning permission is made in respect of the whole of a building, and if the building operation is not wholly completed, the whole of the operation is unlawful.
Per Lord Scott of Foscote: Although a holistic approach was correct, there must be some time limit after which it would no longer be open for enforcement action in respect of the original breach to be taken; difficult considerations may arise where intentions change and a building might no longer be categorised as an uncompleted building.
Belmont Farm Ltd v Minister of Housing and Local Government (1962) 60 LGR 319; (1962) 13 P&CR 417; [1963] JPL 256, DC
Ewen Developments v Secretary of State for the Environment [1980] JPL 404, CA
Howes v Secretary of State for the Environment [1984] JPL 439
McKay v Secretary of State for the Environment [1989] 1 PLR 7; [1989] JPL 590, QBD
Somak Travel Ltd v Secretary of State for the Environment (1988) 55 P&CR 250; [1987] JPL 630, QBD
This was an appeal by Maidstone Borough Council from a decision of the Court of Appeal ([2001] 3 PLR 107) dismissing an appeal by the appellants against a decision of Mr Duncan Ouseley QC, sitting as a deputy judge of the Queen’s Bench Division, who had allowed an appeal by the respondent, Alan Frank Sage, against the decision of the inspector upholding an enforcement notice.
LORD NICHOLLS OF BIRKENHEAD:
[1] My lords, I have had the opportunity of reading a draft of the speech of my noble and learned friend, Lord Hobhouse of Woodborough. I agree that, for the reasons he gives, this appeal should be allowed.
LORD HOPE OF CRAIGHEAD:
[2] My lords, I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Hobhouse of Woodborough. I |page:123| agree with it, and, for the reasons that he has given, I too would allow the appeal.
[3] As my noble and learned friend has explained, Mr Sage’s primary argument at first instance was that the building was an agricultural building for which he did not need planning permission. This was a pure question of fact, and it was resolved against him conclusively by the inspector’s finding that the building was not an agricultural building, but was best described as a dwellinghouse that was in the course of construction.
[4] This led to the alternative argument that the notice was out of time because the operations that must be substantially completed for the purpose of section 171B(1) of the Town and Country Planning Act 1990 comprise the operations that constituted a breach of planning control, or (as it was put) the operational development, and not the whole operation of completing the dwellinghouse. The inspector’s view was that the four-year period did not begin until the whole operation of creating the dwellinghouse was substantially completed. He then held, treating the question as one of fact and degree, that the building in this case was not a substantially completed dwellinghouse. Here, again, the inspector’s decision on the facts went against Mr Sage, and the contrary is no longer arguable. The question that remains is whether the inspector was right when he said that the four-year period did not begin until the whole operation of creating the dwellinghouse was substantially completed.
[5] Mr Sage’s argument is that the reference in section 171B(1) to the date “on which the operations are substantially completed” has to be read in the light of the wording of the other relevant sections in the 1990 Act, and that, by tracing the language of that subsection back through section 171A(1)(a), the reader is required to bring into account the definition of “development” in section 55(1) of the Act, those operations that section 55(2)(a) says are not to be taken to involve development, and the definition of the word “building” in section 336(1). If this approach is right, the position is, as Keene LJ explained in [27] to [31] of his judgment1, capable of being resolved quite simply by saying that what have to be substantially completed are those operations that amount to a breach of planning control, and that operations and works that do not amount to development because they fall within section 55(2)(a) are not to be taken into account. On this approach, it does not matter that the inspector did not think that the building was a dwellinghouse. All one needs to find is that there is a building that has been erected in breach of planning control.
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1 [2001] 3 PLR 107
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[6] I was initially attracted to this approach, as it seemed to me to be consistent with the language of the statute and to be unlikely, as Keene LJ said at [32] of the judgment, to give rise to practical difficulties. But I have in the end been persuaded, with respect, that the language of the statute is open to a different interpretation and that it makes better sense of the |page:124| legislation as a whole to adopt the holistic approach that my noble and learned friend has described. What this means, in short, is that regard should be had to the totality of the operations that the person originally contemplated and intended to carry out. That will be an easy task if the developer has applied for and obtained planning permission. It will be less easy where, as here, planning permission was not applied for at all. In such a case, evidence as to what was intended may have to be gathered from various sources, having regard especially to the building’s physical features and its design.
[7] If it is shown that all the developer intended to do was to erect a folly, such as a building that looks, from a distance, like a complete building — a mock temple or a make-believe fort, for example — but was always meant to be incomplete, then one must take the building when he has finished with it as it stands. It would be wrong to treat it as having a character that the person who erected it never intended it to have. But if it is shown that he has stopped short of what he contemplated and intended when he began the development, the building as it stands can properly be treated as an uncompleted building against which the four-year period has not yet begun to run.
[8] It must be emphasised that it is not for the inspector to substitute his own view as to what a building is intended to be for that that was intended by the developer. But that was not what the inspector did in this case. It was not just that the building looked to him like a dwellinghouse that was in course of construction. His conclusion was supported, in his view, by an application that Mr Sage had made in 1994 to use the building for tourist accommodation, and by his finding that that remained Mr Sage’s stated intention. These matters were relevant to the question that he had to decide, and, in my opinion, he was entitled on the facts that he found to reach the conclusion that he did.
LORD HOBHOUSE OF WOODBOROUGH:
[9] My lords, on 19 March 1999, Maidstone Borough Council (the council), as the relevant planning authority, issued and served upon Mr Sage an enforcement notice (the notice) under Part VII of the Town and Country Planning Act 1990 (the Act). The notice informed him that the council considered that he was in breach of planning control in erecting (or, as later amended, partially erecting) a dwellinghouse, and required its removal. Mr Sage appealed, raising various grounds under section 174(2). Besides applying for planning permission ex post facto, the two main grounds of his appeal were, first, that the building was an agricultural building and did not require planning permission and, second, that the notice had been served outside the four-year time limit permitted by section 171B(1), a section inserted into the Act by the Planning and Compensation Act 1991.
[10] Section 171B(1) provides:
Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be |page:125| taken after the end of the period of four years beginning with the date on which the operations were substantially completed.
This provision followed the lead given by Mr Robert Carnwarth QC in his Report to the Secretary of State for the Environment (Enforcing Planning Control: February 1989), which called for greater simplicity and clarity in the law and procedures of enforcement that had become excessively technical and complex and open to evasion and abuse. There can be no doubt that the underlying purpose behind section 171B(1) was to introduce a single, easily applied limitation period for operations. Section 171B(2) and (3) adopted, in respect of change of use and other breaches, four- and 10-year periods respectively, running in either case from the date of the breach.
[11] The point raised by this appeal by the council to your lordships’ house concerns the construction of section 171B(1) and the starting point of the four-year period, ie “the date on which the operations were substantially completed”. Mr Sage contends that it means the date after which the building work remaining to be done would no longer itself involve a breach of planning control, because, if taken on its own, it would not require planning permission. The judge, Deputy Judge Ouseley QC, and the Court of Appeal summarised the point in a brief sentence:
The building operations are complete when those activities which require planning permission are complete.
The council, on the other hand, argue for a holistic construction, asking: has the building been substantially completed and, if so, when? The council, like the inspector, adopt the passage in the Ministry Circular No 10/971, para 280.
in the case of a single operation, such as the building of a house, the four-year period does not begin until the whole operation is substantially complete. What is substantially complete must always be decided as a matter of fact and degree… All the relevant circumstances must be considered in every case.
The inspector, deciding in favour of the council and upholding the notice, applied the latter approach; the judge and the Court of Appeal (Schiemann and Keene LJJ and Sir Murray Stuart-Smith), deciding in favour of Mr Sage, preferred the former.
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1 Enforcing planning control: Legislative provisions and procedural requirements, 31 July 1997
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[12] The inspector heard Mr Sage’s appeal (together with two other appeals concerning the same parties) over the space of two days, including a view of the relevant premises. Both parties were legally represented and adduced oral and written evidence. It was accepted by the council that Mr Sage had not done any further building work on the relevant structure |page:126| during the last four years before the notice was served. It was also common ground that it was an operation case, falling within section 171B(1), not a change of use case under subsection (2).
[13] The inspector started by considering Mr Sage’s contention that it was an agricultural structure and therefore he had never needed any planning permission to erect it. He considered how it was constructed, and concluded that it was constructed with domestic, not agricultural, features, as a dwelling, not as a building to be used for agricultural purposes. It was constructed with cavity block walls. Three elevations were clad with tiles and the fourth with timber boarding (but the cladding was incomplete). The entrance door and the fenestration were typical of a dwelling designed and constructed for human habitation, not agricultural use. The external tile-hung walls, in his view, supported the same conclusion. The building had an upper floor with further fenestration, although no stairway had been installed. He applied the test of physical layout and appearance derived from Belmont Farm Ltd v Minister of Housing and Local Government (1962) 13 P&CR 417 and McKay v Secretary of State for the Environment [1989] JPL 5901.
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1 [1989] 1 PLR 7
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[14] The inspector rightly did not investigate the intentions of Mr Sage at various stages in the history, nor the uses he had made of the structure from time to time. The character and purpose of a structure falls to be assessed by examining its physical and design features. The relevance of the assessment is to determine whether or not the building operation is one requiring planning permission. The actual use made of the building does not alter the answer to be given. Keeping a pig in the sitting room or hens in the kitchen does not turn a dwellinghouse into an agricultural building, even if the humans move out. Permission for a change of use may have to be applied for but that would be a separate question. The starting point for considering the permitted use of a new structure is the character of the building for which permission has been given or does not require to be given: section 75(3) — “the permission shall be construed as including permission to use the building for the purpose for which it is designed”.
[15] He expressed his conclusion in the words:
As a matter of fact and degree, I consider that, having regard to its layout and appearance, [this building] is not an agricultural building and was not designed as such. … [It] is best described as adwellinghouse that is in course of construction.
Having read the evidence and considered the photographs that have been included in our papers, the inspector’s conclusion on this point would seem to have been inevitable. Therefore, that ground of appeal failed.
[16] This led on to Mr Sage’s further ground for challenging the notice, that it was out of time. The starting point is that the building is to be classified as an unfinished dwellinghouse. It was unfit for habitation. The |page:127| floor at ground level consisted of rubble. There were no service fittings. There was no staircase. The interior walls were unfinished, without lining or plaster. None of the windows, including those on the upper floor, were glazed. One witness refers to the roof-light as being glazed. There was no guttering. Mr Sage had said in evidence that the building had originally been glazed, but that the glass had been broken by vandals more than four years earlier and he had not replaced it. Mr Sage’s evidence was contradicted by other evidence that was inconsistent with the windows ever having been glazed. It appears that the inspector probably did not accept Mr Sage’s evidence on this point. But it was not critical to the inspector’s decision, nor to those of the judge and the Court of Appeal.
[17] On this state of the facts, the issue of the construction of section 171B(1) became critical and was the effective subject matter of Mr Sage’s recourse to the jurisdiction of the High Court. On the argument of Mr Sage, it was necessary to consider whether the work needed to complete the structure as a dwellinghouse was such as of itself to require planning permission, a point that Mr Sage submitted was at least arguable and had not been taken into account by the inspector in arriving at his decision, and, therefore (as the judge ordered), his decision should be quashed and he be directed to reconsider the appeal against the notice having regard to that factor.
[18] It is convenient to examine this argument at the outset, although it is not the central point raised by this appeal. Section 57(1), in Part III of the Act, provides that (subject to immaterial exceptions) “planning permission is required for any development of land”. “Development” is defined in section 55 as meaning:
the carrying out of building, engineering, mining or other operations in, on, over or under land…
Subsection (1A), added in 1991, amplifies this by providing that “building operations” shall include —
(a) demolition of buildings;
(b) rebuilding;
(c) structural alterations of or additions to buildings; and
(d) other operations normally undertaken by a person carrying on business as a builder.
Subsection (1) is subject to subsection (2) which, so far as material, provides:
The following operations …shall not be taken for the purposes of this Act to involve development of the land —
(a) the carrying out for the maintenance, improvement or other alteration of any building of works which —
(i) affect only the interior of the building, or
(ii) do not materially affect the external appearance of the building
… |page:128|
Mr Sage submits that the work remaining to be done was all either internal work or work that did not materially affect the external appearance of the building.
[19] It would be a question of fact whether the external work still to be done would have had a material effect upon the building’s appearance. But that question would only become significant if the work was work carried out “for the maintenance, improvement or other alteration” of the building. Work carried out by way of completing an incomplete structure would not come within exception (a). So, once it has to be accepted, in accordance with the inspector’s finding, that the structure was a dwellinghouse in the course of construction, it follows that the work would be properly described as work carried out in the course of completing the construction of the building. Exception (a) clearly contemplates and involves a completed building that is to be maintained, improved or altered. It follows that an essential element in the argument of Mr Sage is missing. He cannot, on the facts of this case, rely upon exception (a) to say that he would not still require planning permission to complete the structure because it would not have amounted to a “development” (the premise upon which his argument under section 171B is founded). The breach of planning control would not have been exhausted; it would be continuing.
[20] The Court of Appeal rejected this conclusion for two reasons. Keene LJ (in [26]) said that so long as the structure had progressed to the stage where it could be said to have an interior, ie, as Mr Sage’s counsel put it, say three or four walls and a roof, exception (a) could be applied and the developer could potentially take advantage of it. Schiemann LJ (in [37]) thought that the council’s argument introduced a subjective element:
I can see no policy reason why we should construe section 55(2)(a) as limited in its application to buildings which have been completed according to some notional plan.
I do not accept either argument. It is not a question of referring to “some notional plan”. Ex hypothesi, the erection is an uncompleted dwellinghouse; what is involved is its completion as a dwellinghouse by carrying out works essential for a completed dwellinghouse. The approach of Keene LJ not only does violence to the language used in exception (a) but also would make a mockery of planning control by inviting abuse and evasion.
[21] Returning now to section 171B(1), it can be seen that the same words have been used by the draftsman to describe building operations as in section 55(1), inviting, it is said, the reader to read the two sections together. However it still does not equate the term “operation” with the term “development” as further appears from section 191. But the more important part of Mr Sage’s argument is that such a cross-reference is required by the words: “Where there has been a breach of planning control consisting in the carrying out without planning permission of building… operations…”. The phrase “the date on which |page:129| the operations were substantially completed” should, he submits, be answered by asking when did those operations reach the stage at which no further breach of planning control was involved. He would then answer that question by reference to exception (a) in section 55(2). Section 171A(1) provides that:
For the purposes of this Act… carrying out development without the required planning permission… constitutes a breach of planning control.
He thus argued that the enforcement notice could only relate to breaches of planning control and that, once no further breach was involved in completing the development, there could be no further building operations to which an enforcement notice and section 171B could apply. Therefore, the operations referred to in section 171B must have been completed.
[22] Again these arguments were accepted by the Court of Appeal. Keene LJ (at [31]) said:
I conclude that, as a matter of law, operations and other works that do not amount to development are not to be taken into account in deciding whether there has been substantial completion within the meaning of section 171B(1). As the deputy judge pointed out, where all the operations amounting to development have been carried out, there is nothing remaining against which the local planning authority could take enforcement action.
Schiemann LJ added (at [38]):
I am presently inclined to the view (without the matter having been fully argued) that substantial completion has taken place when there is enough to enable a planning authority to judge whether the building has sufficient adverse effects to make it expedient to issue an enforcement notice.
The section might have been drafted as Schiemann LJ prefers, but it was not. The criterion he suggests would fly in the face of the simplicity and clarity that the revisions of planning control law were seeking to achieve. As regards the reason given by Keene LJ and the judge, it involves giving a limited meaning to the phrase “building operations”, not its natural meaning, and does so on the basis of adopting an extended meaning to exception (a), which is open to the objections I have already referred to. But the most substantial objection to his approach is that it is contrary to the holistic approach upon which this part of planning law is based.
[23] When an application for planning consent is made for permission for a single operation, it is made in respect of the whole of the building operation. There are two reasons for this. The first is the practical one that an application for permission partially to erect a building would, save in exceptional circumstances, fail. The second is that the concept of final permission requires a fully detailed building of a certain character, not a structure that is incomplete. This is one of the differences between an outline permission and a final permission: section 92 of the Act. As counsel for Mr Sage accepted, if a building operation is not carried out, both |page:130| externally and internally, fully in accordance with the permission, the whole operation is unlawful. She contrasted that with a case in which the building has been completed but is then altered or improved. This demonstrates the fallacy in Mr Sage’s case. He comes into the first category, not the second.
[24] The same holistic approach is implicit in the decisions on what an enforcement notice relating to a single operation may require. Where a lesser operation might have been carried out without permission, or where an operation was started outside the four-year period but not substantially completed outside that period, the notice may nevertheless require the removal of all the works, including ancillary works: Ewen Developments v Secretary of State for the Environment [1980] JPL 404; Howes v Secretary of State for the Environment [1984] JPL 439, per Hodgson J; Somak Travel Ltd v Secretary of State for the Environment [1987] JPL 630, per Stuart-Smith J. The first of these upheld a requirement that the whole of an embankment be removed. In the second, the inspector had directed himself that the removal of a hedge and the creation of an access was “a continuous operation and each step in the work prolong[ed] the period for serving the enforcement notice as regards every earlier step of the development”: the judge upheld the notice. The third case involved an unauthorised change of use case, from residential to commercial use. The notice not only required the cessation of the commercial use but also the removal of an internal staircase that had been put in to facilitate that use, although, in itself, the staircase had not required permission.
[25] These decisions underline the holistic structure of planning law and contradict the basis upon which the Court of Appeal reached its decision in favour of Mr Sage.
[26] Finally, it was argued for Mr Sage that the inspector should have had express regard to an inspector’s decision letter reported in [1972] JPL 385, in which where the facts bore some similarity to those of the present case and he had held the enforcement notice to be out of time. However, that decision was based upon the finding by the inspector that “the appeal building had become a viable building more than four years before [the] service of the notice and that in the form which it then took it [was] immune from enforcement action”. The inspector’s finding in the present case was that the structure was best described as a dwelling in the course of construction. The inspector was right to think that the 1972 decision did not help; indeed, it was adverse to Mr Sage’s case.
[27] Accordingly, the inspector’s decision was correct. The notice had not been served after the end of the period of four years beginning with the date upon which the building operations were substantially completed. Indeed, they had still not been substantially completed at the date of the notice. The appeal should be allowed and Mr Sage’s CPR Part 8 proceedings dismissed, and the orders of the judge and the Court of Appeal set aside, including the costs orders made in favour of Mr Sage.
[28] Leave to appeal to your lordships’ House was given “on terms that, if successful, the petitioners do not seek any order for costs against |page:131| the respondent”. Accordingly, no order will be made in respect of the costs in this House or in the courts below.
LORD SCOTT OF FOSCOTE:
[29] My lords, I have had the advantage of reading in advance the opinion of my noble and learned friend, Lord Hobhouse of Woodborough, and gratefully adopt his exposition of the facts and statutory provisions that have given rise to this appeal to the House. I, like your lordships, have come to the conclusion that this appeal by Maidstone Borough Council should be allowed, and I am in general agreement with the reasons expressed by Lord Hobhouse as to why that should be so. There is, however, an aspect of this case that seems to me unsatisfactory, and I think I should explain what it is.
[30] The purpose of section 171B of the Town and Country Planning Act 1990 (added to the 1990 Act by amendment with effect from 2 January 1994: see section 4 of the Planning and Compensation Act 1991 and SI 1991/2905) was, as Lord Hobhouse has explained in [10] of his opinion, to introduce a straightforward, easily applied set of time limits, within which enforcement action to remedy breaches of planning control must be brought. The section divides breaches of planning control into three categories.
[31] First, where the breach consists of “building, engineering, mining or other operations” over land, enforcement action cannot be taken after four years from “the date on which the operations were substantially completed” (subsection (1)). Second, where the breach consists of a change in the use of a building to use as a single dwellinghouse, enforcement action cannot be taken after four years “beginning with the date of the breach” (sub-section (2)). And, third, in the case of any other breach of planning control, enforcement action cannot be taken after 10 years, beginning with the date of the breach (subsection (3)).
[32] In the present case, Mr Sage, without planning permission, commenced the building of a dwellinghouse. In 1994, however, while thedwellinghouse was still uncompleted, he ceased his building works. The building, such as it then was, although uncompleted as a dwellinghouse, had reached a stage of construction in which it was capable of use for other purposes. It could, in particular, be used for agricultural purposes. Hay, straw or grain could be stored in it. Agricultural machinery of a size small enough to be manoeuvred through the single entrance door could be sheltered in it. Livestock or poultry could be kept in it.
[33] The council served an enforcement notice on Mr Sage on 19 March 1999. This was more than four years after the building work had ceased. The issue before the inspector centred on the question of whether or when the building operations were “substantially completed”. It is, in my opinion, important to notice how the argument proceeded before the inspector and in the courts below.
[34] The inspector recorded in his decision letter (para 22) that the issue was whether the building was an agricultural structure, as Mr Sage |page:132| contended, or an uncompleted dwellinghouse, as the council contended. In para 26, the inspector made the important finding that:
as a matter of fact and degree… having regard to its layout and appearance, [the building] is not an agricultural building and was not designed as such.
This finding was not challenged in the courts below, and was expressly accepted before your lordships by counsel for Mr Sage.
[35] Accordingly, in the courts below and before the House, the argument was whether, for the purposes of section 171B(1), the building of the intended dwellinghouse, in the state in which the building works stood in 1994, was “substantially completed”. My noble and learned friend, Lord Hobhouse, has analysed the arguments and concluded that the inspector’s decision that the building operations were not substantially completed was correct. On the premise that the inspector was faced with an uncompleted dwellinghouse, I respectfully agree.
[36] My concern, however, is with the premise. I have no doubt at all that the inspector was right in concluding that what had been designed by Mr Sage, and what he had been building, was a structure intended for use as a dwellinghouse. But the classification of a building, for planning purposes and as a matter of common sense, is not immutable but can change if the use to which the building is put changes. It is a common feature in this country for agricultural barns to be converted into dwellings. Once the conversion is complete and use of the property as a dwelling commences, and perhaps at an earlier point of time, the classification of the building as a barn ceases to be accurate. Planning permission for any building operations involved in the conversion and for the change of use should, of course, have been obtained. But the change in the appropriate classification of the building, from agricultural barn to dwellinghouse, would not depend upon whether planning permission had been obtained. It would be a question of fact.
[37] Conversely, dwellings may become agricultural barns. There are, throughout the countryside, usually well off the beaten track, innumerable examples of buildings that have been farm workers’ cottages but which, with increasing agricultural mechanisation, have become surplus to farming requirements and have, usually in some state of disrepair, become used for storage of hay or straw or for sheltering livestock. Planning permission is, I suspect, very rarely sought for this change of use, but here, too, classification of the building as a dwelling or as a barn is a question of fact, dependant upon the permanency of the use to which it is being put and the intentions of the owner in that regard.
[38] Just as change of use can change the appropriate classification of a completed building, so, too, in my opinion, there can be no logical objection to the appropriate classification of a building in course of construction being changed by use, or by intentions for future use, of the uncompleted building inconsistent with its original classification. As with a completed building, the change could be either a change from an uncompleted agricultural building to an uncompleted dwelling, or a |page:133| change from an uncompleted dwelling to an agricultural barn, whether completed or uncompleted.
[39] For example, under the Town and Country Planning General Development Order 1988 (SI 1988/1813), planning permission is, in general, not necessary for the erection of a building that is reasonably necessary for the purposes of agriculture. A farmer who commenced the construction of such a building would not, by doing so, be in breach of planning control. But if, before the building operations were complete, his intentions changed and he began to install a bathroom and other features indicative of a dwelling, the operations would be in breach of planning control. Conversely, I suggest, in a case in which the construction of a building as an additional dwelling has been commenced by a farmer, but before the building is complete he changes his mind, decides to use the uncompleted building for agricultural purposes, and actually does commence and continue that use, the classification of the structure as an uncompleted dwelling would no longer be accurate. The structure would have become an agricultural building.
[40] The correct application of the section 171B time limits to a case in which the building operations intended at the outset have not been completed, but the use to which the structure has been put since the building operation ceased has changed the nature of the building from one that did require planning permission to one that did not, may raise difficult questions of fact and law.
[41] In principle, however, there must, in my opinion, be some time limit after which it would no longer be open for enforcement action in respect of the original planning breach to be taken. The present case may be taken as an example. The building works ceased in 1994. The enforcement action was taken in 1999. Let it be assumed that, at some point between those two dates, Mr Sage decided he would not complete the originally intended dwelling but would instead use the structure for his agricultural purposes, and that he thereafter did use the structure for those purposes. It cannot, in my opinion, be the case that for an indefinite and open-ended period, the council would remain free to commence enforcement action, contending that the structure still remained a substantially uncompleted dwellinghouse. Such a state of affairs would, in my opinion, be inconsistent with the scheme of section 171B.
[42] These reflections are of no assistance to Mr Sage in the present case. There is no evidence of the use to which the uncompleted structure was put by Mr Sage in the period between 1994 and 1999. There are no facts in evidence that enable to be identified a date after which the 1994 structure could be regarded as no longer an uncompleted dwelling but as having become an agricultural building.
[43] There have, naturally, been no submissions from counsel on either side as to how section 171B would have had to be applied if there had been such evidence. It seems to me, however, well arguable that it would no longer be open for enforcement action to be taken in respect of an uncompleted dwellinghouse if a period of more than four years had |page:134| elapsed since the structure had become, de facto, an agricultural building. I think it is important to be clear that nothing in the result of the present case decides that issue. However, I agree that this appeal must be allowed and the order proposed by Lord Hobhouse should be made.
LORD RODGER OF EARLSFERRY:
[44] My lords, I have had the opportunity of reading the speech of my noble and learned friend, Lord Hobhouse of Woodborough, in draft. For the reasons that he gives, I too would allow the appeal and make the order that he proposes.
Appeal allowed.
