Council issuing enforcement notice alleging breach of planning control – Section 171B of Town and Country Planning Act 1990 – Circular 10/97 – Builder claiming house substantially completed four years prior to notice – Whether house exempt from enforcement action – Appeal dismissed
In March 1999 the second defendants, Maidstone Borough Council, issued an enforcement notice against the claimant builder, alleging a breach of planning control by “the partial erection of a dwelling-house”, and requiring demolition of the building. The claimant appealed to the Secretary of State for the Environment, Transport and the Regions, relying upon section 171B of the Town and Country Planning Act 1990. He contended that enforcement action could not be taken, since the relevant building operations had been “substantially completed” more than four years prior to the council’s action. An inspector found that the building had no glazing or guttering, no ground floor or access to the first floor, and no service fittings or internal finishes. Taking the approach advised in para 2.80 of Circular 10/97, “Enforcing Planning Control”, the inspector held, as a matter of fact and degree, that the building was not a substantially completed dwelling-house, and that the claimant could not, therefore, rely upon section 171B of the Act.
The claimant appealed, contending that the inspector had erred in law, and that: (i) on a correct approach, the only works to be substantially completed were works amounting to “development” within section 55 of the Act, and, more particularly, “building operations” within the meaning of section 55(1A); and (ii) by virtue of section 55(2)(a), such operations did not include works that affected only the interior of the building, or that did not materially affect the external appearance of the building. The judge allowed the appeal, holding that the advice in the circular was based upon an incorrect reading of Ewen Developments v Secretary of State for the Environment [1980] JPL 404, which did no more than to decide that, in looking at the four-year period, it was not permissible to split a single piece of operational development into parts completed before or after the start of that period. The judge remitted the matter, concluding that the claimant was correct in contending that building operations were only completed when those activities that required planning permission were completed. The council appealed.
Held: The appeal was dismissed.
1. The building operations that had to be substantially completed more than four years prior to the enforcement notice in order for section 171B of the Act to apply were only those that constituted a breach of planning control. Clearly, not all building operations amounted to a breach of planning control.
2. Building operations not amounting to development were not to be taken into account in establishing whether a building was substantially completed for the purposes of the four-year period prescribed by section 171B.
3. Accordingly, it was a matter of fact and degree whether a property was substantially completed and whether this amounted to development.
Alice Robinson (instructed by Brachers, of Maidstone) appeared for the claimant; Richard Barraclough (instructed by the solicitor to Maidstone Borough Council) appeared for the second defendants.
Thomas Elliott, barrister
