BARRY DEVINE v SECRETARY OF STATE FOR LEVELLING UP HOUSING AND COMMUNITIES

For the four-year enforcement time limit, substantial completion must be assessed by reference to the building operations which cumulatively produced the relevant new building. Where a significant operation forms part of that building, completion cannot precede that operation. The assessment is holistic and fact-sensitive. Character and purpose are assessed objectively from physical and design features, although those features may support an inference about intended use. An inspector’s evaluative conclusions will not be unlawful merely because another view is possible, provided relevant matters are considered and adequate reasons are given. Distinct, independently sufficient reasons may each defeat an appeal.

An enforcement notice alleged the unauthorised erection of a new building and boundary wall and fence. The appellant appealed to the Secretary of State under Town and Country Planning Act 1990, relying on planning merits, absence of a new building and expiry of the four-year enforcement period.

The Inspector dismissed the appeal. Permission to appeal to the High Court was granted only on the time-limit issue: whether the relevant building operations had been substantially completed by 18 March 2015. The central question was whether the Inspector had erred in law by treating post-2015 works, including replacement of the roof, as part of the erection of a new building and by considering the building’s intended residential use.

1. Appeal dismissed. The Inspector’s determination was not vitiated by public law error. The appellant was ordered to pay the respondent’s agreed costs of £5,000. Permission for a further appeal was refused.
2. Once the Inspector’s unchallenged finding that a new building existed was accepted, the legally correct question under section 171B(1) of the Town and Country Planning Act 1990 was whether the building operations producing that new building had been substantially completed by 18 March 2015.
3. The replacement of the entire roof structure of the northern and western wings in 2016 and 2017 was found to be a significant constitutive part of the new building. As a matter of legal logic, the new building could not have been substantially completed before that operation occurred. The appellant could not avoid that conclusion by accepting, or failing to challenge, the finding that there was a new building.
4. The Inspector was entitled to reject the contention that the works were merely repairs and improvements. The reasoning was evaluative, fact-specific and supported by adequate reasons. The Inspector had considered the age and former agricultural and storage use of the building, the appellant’s restoration case, and the physical works undertaken.
5. The Inspector also gave a distinct and independently sufficient reason for dismissal. The structural changes were consistent with creating a building suitable for residential occupation, while heating, sanitation, electrical work, doors and windows remained incomplete. This was an objective assessment of the character and purpose of the structure by reference to its physical and design features, consistent with Sage v Secretary of State for the Environment, Transport and the Regions [2003] UKHL 22.
6. Each ground was independently fatal. The conclusion was not rendered unlawful by the fact that the reasoning concerning the new building and the unfinished residential project appeared in related passages.

• Inspector acting for the Secretary of State: appeal against the enforcement notice dismissed on all three grounds by determination dated 23 November 2021.
• High Court (Administrative Court): permission to appeal granted only on the time-limit issue; appeal dismissed. Permission for a further appeal refused.