Brown v Brown

For the four-year enforcement time limit, substantial completion of building operations is assessed holistically. The court considers the totality of the operations originally contemplated and intended, rather than isolating only those works which independently required planning permission. A structure may remain an uncompleted building where the developer stopped short of the intended project. An inspector’s conclusion on substantial completion is primarily one of fact and degree. On a statutory appeal, the High Court may intervene for an error of law, including a flawed methodology, but not merely because another conclusion is possible. An inspector need not decide a refined argument which was not advanced before him.

The appellants challenged enforcement notices issued by Chelmsford Borough Council concerning the use of their land as a caravan site. They relied on ground (d) under section 174(2)(d) of the Town and Country Planning Act 1990, arguing that relevant building operations had been substantially completed by the summer of 1998 and were therefore outside the four-year enforcement period in section 171B(1).

A planning inspector rejected that argument, treating the joining of two mobile homes, continuing replacement works and subsequent timber cladding as a continuing operation completed only after 1 October 2001. Permission to appeal was granted on two grounds: alleged misapplication of the holistic approach in Sage v Secretary of State [2003] UKHL 22, and failure to decide whether the cladding or repairs were separate operations.

The appeal under section 289 of the Town and Country Planning Act 1990 was dismissed. The appellants had not established an error of law in the inspector’s decision.

1. The approach in Sage v Secretary of State [2003] UKHL 22 required consideration of the totality of the operations which the developer originally contemplated and intended to carry out.
2. The inspector was entitled to treat the poor structural condition of one mobile home, continuing replacement works and later cladding as parts of one continuing operation. He could lawfully conclude that substantial completion occurred only when the cladding was added.
3. Whether operations were substantially completed was a matter of fact and degree. The court could intervene for a legally flawed methodology or an unreasonable conclusion, but no such defect was shown.
4. The inspector was not required to decide whether the cladding or repair works constituted separate building operations because that case had not been advanced before him.

The appellants were ordered to pay costs summarily assessed at £6,445.

• High Court (Administrative Court): HHJ Rich QC granted permission to appeal on two grounds on 5 September 2003. Mr Justice McCombe dismissed the statutory appeal against the planning inspector’s decision dated 10 June 2003.