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International arbitration report
In this edition, we focused on the Shanghai International Economic and Trade Arbitration Commission’s (SHIAC) new arbitration rules, which take effect January 1, 2024.
Immunity from Enforcement Considered in Enforcement Notice Appeal (Devine v Secretary of State for Levelling Up, Housing and Communities)
First published by LexisNexis Planning
Global | Publication | June 2023
The Appellant purchased a site with a barn in 2000 and undertook various works between 2000 and 2018. In March 2019, the Council issued an enforcement notice alleging that the works amounted to construction of a new building in breach of planning control.
On appeal, the Appellant argued that the works were for repair and improvement and were complete in 2015, more than four years prior to the date of the enforcement notice (the Relevant Date). The Inspector determined that the works constituted construction of a new building and were not complete prior to the Relevant Date. The High Court and Court of Appeal (CoA) agreed with the Inspector’s conclusions.
The CoA considered how the four-year rule under the Town & Country Planning Act 1990 (the Act) should be interpreted and applied. In determining whether the construction of the building had been substantially completed, it was relevant to consider both the building’s purpose and the developer’s intention.
Content
Background
The Appellant purchased a barn and undertook various works from 2000 to 2018 which had the effect of creating a significant, albeit incomplete, residential dwelling, without the grant of permission. Section 171B(1) of the Act states, "where there has been a breach of planning control consisting in the carrying out without planning permission of building … operations … on … land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed."
In March 2019 an enforcement notice was served, alleging a breach of planning control, and requiring demolition of the new building. The notice was challenged inter alia on the basis that a breach of planning control had not occurred because the relevant works were merely repairs, and at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control because those repairs were completed more than four years before the enforcement notice was issued.
The Inspector held an inquiry into the appeal and conducted a site visit. The Inspector took into account the physical and design features of the building, and noted factors including lack of heating, ongoing electric work and subsequent replacement of the entire roof, which were evidence that the building was not substantially complete. The Inspector considered that the five planning applications the Appellant made in 2018 confirmed that it was his intention create a building. The appeal was dismissed and the Inspector upheld the enforcement notice. The Appellant challenged the Inspector’s decision, which was dismissed by the High Court dismissed.
The single ground of appeal before the CoA was whether ““[the High Court] judge erred in law in finding that it was open to the planning inspector to find that the repair of a roof already in situ meant that the building was not already substantially completed more than [four] years before the service of the enforcement notice”. In effect, then, the main issue for us to decide is whether the inspector’s approach to the ground (d) appeal was unlawful”.
Judgment
The appeal centred on how the state and condition of the building at March 2015 was assessed. The Inspector's approach to the crucial question in ground (d) – whether the operations in question had been 'substantially completed' before the 'relevant date' was “legally impeccable”. It was the approach on which the House of Lords had agreed in Sage v Secretary of State for the Environment, Transport and the Regions [2003] 1 W.L.R. 983.
The CoA found that there were three main conclusions, “First, a new building had been constructed in place of the original building, using some of the fabric of that original building but with the effect of creating a new and “unified” structure. Second, the new building was, unmistakeably, a dwelling house in the course of construction. And third, the operations involved in its construction were not “substantially completed” before the “relevant date”, and it was therefore not immune from enforcement”.
There was nothing unlawful in the Inspector’s consideration of the purpose of the building the Appellant had constructed, or consideration of the intention of the Appellant as work on the site went ahead. The Inspector had made clear findings on the evidence before him, with the benefit of a site visit. The emphasis Lord Hobhouse gave to the distinction between 'purpose' and 'intention' in Sage was to ensure that such evidence did not override the objective purpose of the structure itself, displayed in its own physical and design features. The intention to use it for that purpose was not relevant as it was obvious on the face of it that the building, once completed, would be residential as opposed to agricultural.
The Appellant’s arguments were rejected by the CoA which determined that the Inspector was entitled to conclude that the building was unmistakably a new dwelling house which was not substantially complete given the outstanding work at March 2015.
Practical Implications
The issue for the CoA largely turned on how the Inspector's decision was to be interpreted. The distinction between the construction of a new building and works of repair remain matters of planning judgment and a question of fact and degree. There can be a fine line, where individual works of repair or improvement cumulatively undertaken over many years can culminate into the construction of a new building.
In determining when the works were substantially complete before the Relevant Date, practitioners should consider the “objective purpose of the structure itself, manifested in its own physical and design features”. Was the building, for example, an agricultural barn, or was it an incomplete dwelling. If objectively the building was designed as a dwelling, but was incomplete then the four-year rule would not apply, as this related only to substantially complete works.
The CoA also noted that the subjective concept of the intentions of the developer should be considered, which is the aim or wish of the developer in constructing or using the structure. Intention is not an immaterial consideration, however, the Court stated that “evidence of a developer’s intention which contradicts the objective reality of what he has in fact built will not, generally at least, negate that objective reality” and evidence of intention must not override or obscure the consideration of the purpose. Such a conclusion is in line with the decision in Sage.
With thanks to Dani Bass for her contributions
Head of Planning; Partner
Email
sarah.fitzpatrick@nortonrosefulbright.com
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