Enforcement notice — Time limit — Whether enforcement notice in relation to unfinished dwelling served within four years of completion of operations — Whether operation completed if remaining works not of themselves requiring planning permission — Correct construction of section 171B of Town and Country Planning Act 1990 — Appeal allowed
The local planning authority served an enforcement notice on the respondent requiring the removal of a house said to have been constructed in breach of planning control. At that time, the building was unfit for habitation: the floor at ground level consisted of rubble, there were no service fittings or staircase, the interior walls were unplastered and none of the windows were glazed. The respondent appealed to the Secretary of State under section 174(2) of the Town and Country Planning Act 1990, contending, inter alia, that the notice had been served outside the four-year time limit imposed in relation to “building… operations” by section 171B(1), and running from “the date on which the operations were substantially completed”.
The respondent contended that building operations were complete when those activities that required planning permission were completed, even if other works that would not, of themselves, require permission remained to be done. The planning authority argued that the relevant question, which was one of fact and degree, was whether the building as a whole had been substantially completed. The inspector applied the latter approach, taking the view that the building had not been completed, and that the time limit had therefore not expired.
The inspector’s decision was quashed by a judge, who accepted the respondent’s interpretation of section 171B. The Court of Appeal upheld that approach, and found that the remaining works did not require planning permission because they did not fall within the definition of “development” by virtue of section 55(2)(a). Section 55(2)(a) excluded operations consisting of works carried out for the maintenance, improvement or other alteration of any building and affecting only the interior of the building. The planning authority appealed.
Held: The appeal was allowed.
The underlying purpose behind section 171B(1) was to introduce a single, easily applied limitation period for “operations”. The construction placed upon it by the Court of Appeal would fly in the face of the simplicity and clarity that the revisions of planning control law were seeking to achieve. It would involve giving a limited meaning to the phrase “building operations” instead of its natural meaning, and would give an extended meaning to the exception in section 55(2)(a). That interpretation would also be contrary to the holistic approach upon which that part of the planning law was based. Where an application was made for planning permission for a single operation, it was made in respect of the whole of that building operation, for two practical reasons: (i) an application for permission partially to erect a building would, save in exceptional circumstances, fail; and (ii) the concept of final permission required a fully detailed building of a certain character, not an incomplete structure. If a building operation were not carried out, both internally and externally, fully in accordance with the permission, the whole operation would be unlawful. The respondent’s structure fell into that category. It was not a case where the building had been completed, then altered or improved. The holistic structure of planning law was underlined by decisions determining what an enforcement notice relating to a single operation could require: Ewen Developments Ltd v Secretary of State for the Environment [1980] JPL 404, Howes v Secretary of State for the Environment [1984] JPL 439 and Somak Travel Ltd v Secretary of State for the Environment [1987] JPL 630 considered.
A further argument by the respondent, that the inspector should have had express regard to an inspector’s decision letter relating to a case on similar facts, reported in the Journal of Planning Law in 1972, had no merit. Accordingly, the inspector had been correct in finding that the enforcement notice had been served within the four-year time limit.
Stephen Hockman QC and Richard Barraclough (instructed by the solicitor to Maidstone Borough Council) appeared for the appellants; Alice Robinson (instructed by Brachers, of Maidstone) appeared for the respondent.
Sally Dobson, barrister
