Sage (Respondent) v. Secretary of State for the Environment, Transport and the Regions and others (Appellants)

For the four-year enforcement limit applicable to unauthorised building operations, substantial completion is assessed holistically. The relevant operation is the whole single building operation, rather than only those individual works which would themselves require planning permission.

The exclusion in section 55(2)(a) of the Town and Country Planning Act 1990 applies to works maintaining, improving or altering a completed building. It does not cover works required to complete an unfinished structure. The four-year period therefore does not begin while the contemplated building operation remains substantially incomplete, even if building work has ceased for more than four years.

A planning authority served an enforcement notice requiring the removal of a structure erected without planning permission. The planning inspector found that the structure was not an agricultural building but an unfinished dwelling house. He also found that its construction had not been substantially completed and upheld the notice.

Deputy Judge Ouseley QC quashed the inspector’s decision and directed reconsideration. The Court of Appeal, in [2001] EWCA Civ 1100, likewise favoured the landowner’s argument that only operations which themselves amounted to development should count when deciding whether construction was substantially complete.

The central issue before the House was the construction of section 171B(1) of the Town and Country Planning Act 1990: whether the four-year enforcement period began once the activities individually requiring permission were complete, or only when the whole building operation was substantially complete.

1. Appeal allowed unanimously. Lord Hobhouse delivered the leading speech. Lord Nicholls, Lord Hope and Lord Rodger expressly agreed with his reasons. Lord Scott agreed generally and concurred in the order. The orders of the High Court and Court of Appeal were set aside, and the landowner’s CPR Part 8 proceedings were dismissed.

2. Per Lord Hobhouse, section 171B(1) of the Town and Country Planning Act 1990 required a holistic approach to substantial completion. Where there was a single building operation, the relevant question was whether the building as a whole had been substantially completed. The provision did not limit the inquiry to individual activities which, considered separately, required planning permission.

3. Per Lord Hobhouse, section 55(2)(a) concerned works undertaken to maintain, improve or alter an already completed building. It did not apply to works required to complete an unfinished dwelling house. The remaining work would therefore continue the unauthorised development, and the breach of planning control had not been exhausted.

4. Per Lord Hobhouse, planning law treats a single building operation as a whole. If a building is not constructed fully in accordance with permission, the whole operation is unlawful. The approach was supported by 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 v London Borough of Brent [1987] JPL 630, which demonstrated that an enforcement notice could reach all parts of an integrated operation.

5. Per Lord Hobhouse, the character and purpose of the structure were assessed from its physical layout, appearance and design features. Its domestic features supported the inspector’s conclusion that it was an unfinished dwelling house. On the facts, the building operations had still not been substantially completed when the notice was served, so the four-year period had not begun.

6. Lord Hope added that the holistic inquiry should ordinarily consider the totality of the operations originally contemplated and intended, with intention inferred from available evidence, particularly physical and design features. Lord Scott separately observed that sufficiently permanent later use might change the classification of an unfinished building. He considered it arguable that a four-year period could then arise from a de facto change to an agricultural building, but expressly left that question undecided because there was no supporting evidence.

7. No order for costs was made in the House or in the courts below, in accordance with the terms upon which leave to appeal had been granted.

1. House of Lords: In [2003] UKHL 22, unanimously allowed the appeal, set aside the orders of the Court of Appeal and High Court, and dismissed the CPR Part 8 proceedings.

2. Court of Appeal: In [2001] EWCA Civ 1100, decided in the landowner’s favour and preferred the construction that building operations were complete when the activities requiring planning permission were complete.

3. High Court: Deputy Judge Ouseley QC quashed the inspector’s decision and directed reconsideration of the enforcement appeal.

4. Planning inspector: Rejected the appeal against the enforcement notice, finding that the structure was an unfinished dwelling house and that its construction had not been substantially completed.