Fidler v Secretary of State for Communities and Local Government

For the purposes of the four-year enforcement period, substantial completion is assessed by reference to the totality of the building operations originally contemplated and intended. An ancillary activity need not itself be a building operation when considered in isolation. It may form part of the overall operations where there is a sufficiently close and intimate connection with the construction. The question is one of fact and degree. Intention is relevant, particularly where the ancillary activity was integral to a scheme designed to conceal unauthorised development until the limitation period was thought to have expired.

The appellant challenged an Inspector’s dismissal of his appeals against enforcement notices concerning an unauthorised dwelling, conservatory and patio. The challenge under section 289 of the Town and Country Planning Act was confined to the Inspector’s decision on the dwelling.

The central issue was whether the erection and later removal of straw-bale walls and tarpaulins, used to conceal the dwelling during construction, formed part of the relevant building operations for the purposes of section 171B(1). If so, the issue was whether substantial completion occurred only when the concealment was removed.

1. Appeal dismissed. The Inspector’s decision on the section 174(2)(d) ground was lawful.
2. Section 171B(1) requires the four-year period to be assessed by reference to when the relevant operations were substantially completed. Following the holistic approach in Sage v Secretary of State for the Environment, Transport and the Regions (2003) 1 WLR 983, the relevant inquiry concerns the totality of the operations which the developer originally contemplated and intended to carry out.
3. An activity which is not itself a building operation when considered in isolation may nevertheless form part of the overall building operations. Whether it does so is a question of fact and degree. The breadth of the word operations in section 55(1) supports that approach.
4. The Inspector was entitled to find that the straw bales were erected to conceal the dwelling until the appellant considered that the four-year rule could be relied upon, and that their removal was always intended. Those findings established a close and intimate connection between the concealment and the construction of the dwelling. The straw-bale operations were therefore an integral and essential part of the overall building operations.
5. The Inspector was also entitled to conclude that substantial completion had not occurred until the straw bales were removed. The fact that the dwelling itself had been constructed and occupied earlier did not require a different conclusion.

The judgment does not state a prior judicial decision under appeal. It records that permission to bring the section 289 proceedings was granted by Wyn Williams J on 26 January 2009. The court dismissed the appeal from the Inspector’s decision.