Sage v Secretary of State for the Environment, Transport and the Regions

For the four-year enforcement period under Town & Country Planning Act 1990, time begins when the operations constituting the breach of planning control are substantially complete. The relevant operations are those amounting to development carried out without planning permission. Works which are not development, including works excluded by section 55(2)(a), are not included merely because they remain necessary to finish or make a building usable. Substantial completion remains a matter of fact and degree, but the assessment must be made within that legal framework. The question is not whether a dwelling is complete or ready for occupation. An enforcement authority must instead identify the operations requiring planning permission and decide whether those operations are substantially complete.

Maidstone Borough Council served an enforcement notice alleging the unauthorised erection of a dwelling house. The building, described as Building A, had stood for more than four years but remained incomplete, including in relation to glazing, guttering, internal works and services.

An inspector held that the four-year period under section 171B(1) had not begun because the dwelling was not substantially complete. On appeal, the deputy judge held that only building operations amounting to development had to be substantially complete and remitted the matter for reconsideration. The Council appealed. The central issue was which operations had to be included when assessing substantial completion.

1. Appeal dismissed. The deputy judge’s decision was upheld and the matter was remitted for reconsideration and redetermination. The appeal was dismissed with costs in favour of the respondent. Permission to appeal to the House of Lords was refused.
2. Under section 171B(1) of the Town & Country Planning Act 1990, the relevant operations are those whose carrying out constituted the breach of planning control. Section 171A(1)(a) links that breach to carrying out development without the required planning permission.
3. Development is defined by section 55(1), subject to the statutory exclusions. Remaining works must amount to development, including building operations within section 55(1A), before they can be taken into account in deciding substantial completion.
4. Section 55(2)(a) is not confined to a completed building. Its reference to maintenance, improvement or alteration of any building can apply where further works remain. Works falling within that exclusion are not development and cannot themselves constitute a breach of planning control. They therefore do not fall within the operations referred to in section 171B(1).
5. Whether the relevant development operations are substantially complete is a matter of fact and degree. The statutory question is distinct from whether a dwelling is complete, fit for occupation or ready for use. The inspector had applied the wrong legal approach by treating glazing, guttering, service fittings and internal finishes as relevant without first considering whether the remaining works amounted to development.
6. Ewen Developments Limited v Secretary of State for the Environment [1980] JPL 404 concerned whether works constituted one engineering operation or several. It did not decide the separate question whether an operation amounting to development was substantially complete, and was distinguished on that basis.
7. Lord Justice Schiemann agreed with Lord Justice Keene’s reasoning. He added that the statutory purpose supported excluding internal works and works not materially affecting external appearance. He expressed the provisional view that substantial completion may arise when enough of a building exists for the planning authority to judge whether its adverse effects make enforcement expedient. That additional view was not fully argued and was not necessary to the decision.

• Court of Appeal: The appeal by Maidstone Borough Council was dismissed, with costs in favour of the respondent. Permission to appeal to the House of Lords was refused.
• Queen’s Bench Division: Mr Justice Duncan Ouseley, sitting as a deputy judge of the High Court, allowed the landowner’s appeal from the inspector’s decision and remitted the matter for determination in accordance with his judgment.
• Planning inspector: The inspector upheld the enforcement notice and rejected the ground that the building was immune from enforcement because the four-year period had not commenced.