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

The House of Lords held that for the purposes of section 171B(1) of the Town and Country Planning Act 1990 the four-year limitation period for enforcement of "building, engineering, mining or other operations" must be determined by reference to the whole operation which the developer originally contemplated and intended to carry out, rather than by reference only to those individual operations which separately amount to "development" under section 55. The court endorsed a holistic factual inquiry into the totality of the operations and the developer's intentions and physical characteristics of the structure. On the facts the inspector had been entitled to find the structure to be a dwelling house in the course of construction and that the operations had not been substantially completed, so the notice was in time.

The appellant local planning authority served an enforcement notice alleging that Mr Sage had, without planning permission, erected (or partially erected) a dwelling house and required its removal. Mr Sage appealed on several grounds, principally that the structure was an agricultural building (and therefore required no permission) and that the notice was out of time because section 171B(1) bars enforcement after four years from "the date on which the operations are substantially completed".

The inspector found, on the facts, that the building had domestic features and was best described as a dwelling house in course of construction and that it was not substantially completed. Mr Sage successfully challenged the inspector's approach in the High Court and the Court of Appeal, which preferred an approach that the four-year period should run from completion of those operations which amounted to development under section 55 (not counting internal work or works excluded by section 55(2)(a)).

The House of Lords allowed the appeal by the planning authority. The court framed the issue as whether the phrase "the date on which the operations are substantially completed" in s.171B(1) should be read narrowly as referring only to those elements that amount to development under s.55, or more broadly as referring to the whole operation contemplated by the developer. The Lords concluded the latter. They explained that the statute and planning law generally adopt a holistic approach: permission is ordinarily sought and granted for the whole building operation, and an enforcement notice may require removal of the whole of the works in appropriate cases. The court rejected the argument that s.55(2)(a) should be used to pare down the operations that count for the s.171B(1) limitation period. On the facts, because the inspector had been entitled to treat the works as an uncompleted dwelling, the four-year period had not begun to run and the notice was in time.

The House noted subsidiary factual and legal points, including the relevance of the building's physical features and design, and observed that difficult factual questions could arise where the use or classification of an uncompleted building changes; the court did not decide how s.171B would apply in such hypothetical circumstances.

Appeal allowed. The court held that the four-year period in section 171B(1) is to be judged by reference to the whole operation the developer contemplated and intended to carry out (a holistic approach). The inspector's factual finding that the structure was an uncompleted dwelling house and that operations were not substantially completed was permissible, so enforcement was not time-barred.

Inspector's decision (upholding the enforcement notice) -> Judicial review / CPR Pt.8 proceedings in the High Court (Deputy Judge Ouseley QC) -> Court of Appeal [2001] EWCA Civ 1100 (decision for Mr Sage) -> Appeal to House of Lords ([2003] UKHL 22).