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

For the four-year immunity under the Town and Country Planning Act 1990, the relevant question is when the operations forming the alleged new building were substantially completed. A building may be new even if some original fabric remains. The issue is one of fact and degree, assessed holistically. The objective character and purpose of the structure are determined principally from its physical layout, appearance and design. Evidence of the developer’s intention may be considered, but cannot override the objective reality of what was built. Works undertaken to complete a building in the course of construction are not merely maintenance of a completed building. Significant structural works within four years before an enforcement notice prevent immunity from arising. Enforcement requiring removal is not thereby punitive or disproportionate.

The appellant challenged an enforcement notice issued under section 172 of the Town and Country Planning Act 1990, alleging the unauthorised erection of a new building and boundary works. The inspector dismissed his appeal, including the ground under section 174(2)(d), finding that the building operations had not been substantially completed by 18 March 2015, four years before the notice.

The High Court dismissed the appellant’s statutory appeal under section 289: [2022] EWHC 2031 (Admin). Permission to appeal to the Court of Appeal was confined to whether the inspector had unlawfully treated roof replacement and other works as part of constructing a new building rather than repairs to a completed barn.

1. Appeal dismissed. The inspector’s decision and Fordham J.’s dismissal of the section 289 appeal disclosed no error of law. The Court of Appeal proceeded on the unchallenged ground (b) finding that the structure was a new building.
2. Under section 171B(1) of the Town and Country Planning Act 1990, the four-year period runs from the date on which building operations are substantially completed. On ground (d), the appellant had to show, on the balance of probabilities, that no enforcement action could be taken when the notice was issued. The relevant date was 18 March 2015.
3. Whether an original building has been replaced by a new building, despite retention of some original fabric, is a matter of fact and degree. The inspector was entitled to consider the cumulative effect of the structural and elevational works, the small proportion of surviving fabric and the resulting unified structure. That approach was consistent with Oates [2018] EWCA Civ 2229 and Sainty 15 P. & C.R. 482.
4. The approach in Sage [2003] 1 W.L.R. 983 required attention to the physical layout, appearance and design features of the structure. The developer’s subjective intention was not an immaterial consideration, provided it did not displace the objective character and purpose of what had actually been built. The inspector therefore acted lawfully in treating the applications for residential planning permission as evidence consistent with the physical reality of a dwelling house.
5. The inspector was also entitled to find that the new building remained in the course of construction. The entire roof over the northern and western wings, together with other significant works, had been undertaken after the relevant date. The absence of heating and sanitation, incomplete electrical work and missing doors and windows reinforced the conclusion that the operations were not substantially completed. The eastern wing formed part of the new building rather than an extension to a recognisable original building.
6. The conclusion was independently supported by the finding that structural works necessary for residential occupation remained unfinished. The enforcement consequence was not punitive, disproportionate or otherwise unjust merely because removal of the unauthorised building was required.

1. Court of Appeal (Civil Division) — [2023] EWCA Civ 601: appeal dismissed.
2. High Court of Justice, King’s Bench Division, Planning Court — [2022] EWHC 2031 (Admin): section 289 appeal dismissed.