Barry Devine v Secretary of State for Levelling Up, Housing and Communities

The Court of Appeal held that the planning inspector lawfully concluded that cumulative works to a late 19th century barn had resulted in a "new building" which was not substantially completed more than four years before the enforcement notice was served, so that immunity under section 171B(1) of the Town and Country Planning Act 1990 did not apply. The inspector’s approach applied the statutory test in section 55 (definition of "development" and the exceptions in s.55(2)(a)) and the established authorities (in particular Sage v Secretary of State) by focussing on the building’s physical and design features while lawfully taking into account evidence of the owner’s intentions insofar as it was reflected in the fabric and layout. The key factual findings were that substantial roof replacement and other structural works took place within the relevant four-year period and that the cumulative works produced a unified building designed for residential use; those findings supported the conclusion that the operations were not substantially completed before the relevant date and that enforcement action was timely.

Background and parties: The appellant, Mr Barry Devine, owned Dones View Farm in the North Cheshire Green Belt where an existing late 19th century barn had been the subject of extensive works undertaken from 2000 to 2018. Cheshire West and Chester Council served an enforcement notice on 18 March 2019 alleging the unauthorised erection of a new building and boundary works. An inspector dismissed Mr Devine’s appeals on grounds (a), (b) and (d) under section 174(2) after an inquiry; the inspector’s decision was dated 23 November 2021. Mr Devine obtained permission to bring a section 289 statutory challenge to the High Court. Fordham J. dismissed that challenge ([2022] EWHC 2031 (Admin)). The appellant appealed to the Court of Appeal.

Nature of the application and procedural posture: This was an appeal against the High Court’s dismissal of a challenge (under section 289 of the 1990 Act) to the inspector’s decision upholding a section 172 enforcement notice. Permission to challenge the inspector’s findings on the ground (b) issue had not been granted; the permitted ground before the courts concerned whether the inspector erred in law on the ground (d) question of immunity under section 171B(1) (the four‑year rule).

Issues framed:

• Whether the inspector lawfully concluded that the cumulative works produced a "new building" (ground (b) appeal) — permission to challenge that finding was not before the Court of Appeal.
• Whether, for the ground (d) appeal, the inspector was wrong in law to treat post‑relevant‑date roof works and other works as part of the erection of the new building so that the operations were not substantially completed before the relevant date (four years before service), and whether the inspector unlawfully relied on the owner’s intention rather than the objective character and purpose of the structure.

Court’s reasoning and outcome: The Court of Appeal accepted the inspector’s factual findings (including that the entire roof structure of the northern and western wings was replaced during 2016–2017 and that other significant works occurred after the relevant date) and concluded that those findings supported the view that the original barn had been replaced by a unified new building designed for residential use. The court applied the statutory framework (section 55 definition of "building operations" and s.55(2)(a) exceptions; section 171B(1) immunity; section 174 appeals) and the House of Lords’ guidance in Sage on assessing "substantial completion". The court held that the inspector lawfully focused on physical and design features, and that it was permissible to take into account evidence of the owner’s intention insofar as it was manifest in the building’s fabric and applications for planning permission. Two independent, lawful reasons meant the ground (d) appeal failed: (i) significant elements of the work producing the new building occurred within the four‑year period; and (ii) the works constituted structural changes necessary for a dwelling, with the project unfinished at the relevant date. The Court of Appeal dismissed the appeal.

The appeal is dismissed. The Court of Appeal held that the inspector lawfully concluded the cumulative works resulted in a new, unified building designed for residential use and that significant building operations (notably replacement of the entire roof structure and other works) occurred within the four years before the enforcement notice, so the operations were not substantially completed before the relevant date; the inspector lawfully assessed physical and design features and permissibly had regard to evidence of intention insofar as it was reflected in those features.

The inspector dismissed the appellant’s section 174 appeals and issued a decision dated 23 November 2021 upholding the enforcement notice. The appellant obtained permission to challenge the inspector’s decision in the High Court; Fordham J. dismissed the section 289 challenge in [2022] EWHC 2031 (Admin) (29 July 2022). The appellant then appealed to the Court of Appeal, which handed down judgment as [2023] EWCA Civ 601 (25 May 2023).