England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MR JUSTICE DUNCAN OUSELEY,
Sitting as a deputy judge of the High Court)

		Royal Courts of Justice Strand London WC2 Thursday, 28th June 2001

Thursday, 28th June 2001

1. LORD JUSTICE SCHIEMANN: Lord Justice Keene will deliver the first judgment.
2. LORD JUSTICE KEENE: This appeal raises an interesting question of the proper approach at law to the question of what amounts to "substantial completion" of operations within the enforcement provisions of the Town & Country Planning Act 1990 ("the 1990 Act"). Mr Duncan Ouseley, QC, as he then was, sitting as a Deputy High Court Judge allowed an appeal against a decision of an inspector who had upheld an enforcement notice served by Maidstone Borough Council on 19th March 1999. The Council, which is the local planning authority for the area, now appeals against that decision of the deputy judge.
3. The enforcement notice alleged a breach of planning control, that being the erection of a dwelling house at Holly Farm, Otham, Kent. The inspector in due course amended the notice by inserting the word "partial" before the word "erection". It is not suggested that anything turns on that amendment. The building in question was identified at the inquiry as Building A. It was agreed that in its then state it had stood on the land for a period in excess of four years. The inspector described the building as follows:

"Building A is built with cavity blockwork walls that have been clad with tiles on three elevations and timber boarding on the other. The pitched roof is tiled. There are two windows in the south elevation, two windows and a door in the west elevation and three windows and a rooflight in the north elevation. The windows are unglazed. Inside, the north-west corner of the ground floor is partitioned off to form two small spaces. There is a hatch to the first floor."

4. He concluded that it was not an agricultural building nor designed as such, but was a dwelling house in the course of construction. Then he turned to the question of whether it was immune from enforcement action by virtue of the four-year period set out in section 171 B of the 1990 Act. On this, the inspector said in his decision:

"The four-year period does not begin until the whole operation of creating the dwelling house is substantially completed.

For a dwelling house, what is substantial completion is likely to entail finishing the external wall, tiling, woodwork, glazing and guttering. Some internal finishes may remain to be carried out (paragraph 2.80 of circular 10/97). Building A has no glazing or guttering, no ground floor or access to the first floor, no service fittings or internal finishes. As a matter of fact and degree, I consider that Building A is not a substantially completed dwelling house. The four-year period for immunity from enforcement action for this incomplete structure has not commenced. The appeal on ground (d) does not succeed."

5. That was challenged by the landowner, Mr Sage, principally (though not solely) on the ground that the approach adopted by the inspector was wrong in law, because he had judged "substantial completion" by the test of a dwelling house including interior finishes and indeed capable of occupation, rather than by comparison with a building in respect of which any remaining works fell outside the scope of "development" in section 55(1) of the 1990 Act, or inside the scope of the exclusions from development set out in section 55(2)(a).
6. Mr Sage's challenge was resisted in the High Court by the Council and by the Secretary of State for the Environment. The latter does not seek to appeal against the judgment of the deputy judge, or to play any part in this appeal, the Secretary of State having since formed the view that the judgment is "persuasive"; hence the Secretary of State is not represented on this appeal.
7. Section 171B(1) reads as follows:

"Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed."

8. The deputy judge in his judgment referred to the statutory definitions of a "breach of planning control" and of "development", and to those operations and uses of land excluded from the meaning of development by section 55(2)(a). He observed that it would be very odd if activities which involved no development in themselves could by their absence prevent immunity arising for a breach of planning control, even after all the works requiring permission had been long completed. His conclusion was this:

"In my judgment, the 'operations' which must be substantially complete are 'building operations', which amount to 'development', and which are in breach of planning control. To the extent that building activities are not 'development' within s55(1), they are not 'operations' which have to be substantially completed for the four year period to start running. Likewise, to the extent that s55(2)(a) excludes other operations from the scope of development, they too are not operations substantial completion of which is necessary for the four year period to start running."

9. That conclusion he based on the wording of section 171B(1). He went on to say:

"I do not consider that the statutory words of s171(B) and s55(1) or (2) can be set aside by appeals to the need to look at the activities involved in building a dwelling house, as a whole. It is rather to the operational development as a whole that one looks in assessing substantial completion."

10. He also rejected the argument that the building operations are complete only when the dwelling is capable of occupation as such. His approach can be summed up in one brief sentence from his judgment:

"The building operations are complete when those activities which require planning permission are complete."

11. It was, the deputy judge said, in the context of that concept of completion that the test of substantially complete had to be applied. It follow that the inspector had not considered whether such matters as glazing or guttering would be operational development, and he had also taken into account the absence of such things as service fittings and internal finishes. For those reasons the deputy judge allowed the appeal and remitted the matter to the Secretary of State for determination in accordance with the judgment.
12. On behalf of the Council Mr Barraclough submits, first, that the reference in section 171B(1) to "operations" is not confined to operations which amount to development. The operations (in this case building operations) have to be considered as a whole, and on this basis internal works should be included in the assessment. The inspector had, he submits, simply to look at the building operations as a whole to see if there was a substantially completed dwelling house. He was entitled to include in his consideration internal works if they amounted to building operations. In support of this approach reliance is placed on the decision in Ewen Developments Limited v Secretary of State for the Environment [1980] JPL 404 where the Divisional Court held that the construction of an embankment was to be seen as a single operation and not as multiple operations.
13. Secondly, Mr Barraclough argues that section 55(2)(a) of the 1990 Act does not bite at all until there is a completed building. Only then can there be works for maintenance, improvement or other alteration of a building. Until there is a completed building, it is said, the works to be done are not works of alteration or improvement but ones of completion. Therefore section 55(2)(a) cannot apply to the original process of construction of the building.
14. For the respondent Miss Robinson emphasises the need to look at the statutory language of section 171 A and B. The former provides a definition of "a breach of planning control", the concept which is then used in section 171B(1). In the latter the words in the last line "the operations" refer back to the earlier part of the subsection and therefore have to be ones which constitute a breach of planning control. That means, it is said, that the operations to which one has regard are those which qualify under the Act as "development" without planning permission.
15. Consequently, it is argued, the operations which have to be substantially completed are those which amount to development at the very least.
16. Miss Robinson criticises the inspector because he did not consider whether the works remaining to be done were operational development at all, that is to say building operations, irrespective of section 55(2)(a).
17. On the meaning of section 55(2)(a) the respondent contends that that provision applies wherever there is something which can properly be described as a building as defined by section 336(1) of the Act. The evidence here was that the appellant had actually been using this building for agricultural purposes for some time. There clearly was, says Miss Robinson, a building. The inspector needed to consider the application of section 55(2)(a), but never did so.
18. It seems to me that this issue can be readily resolved by having regard to the wording used in section 171 B(1) and the other relevant sections of the 1990 Act. That particular subsection provides that the period of four years begins with the date:

"on which the operations were substantially completed."

19. When one asks which operation have to be substantially completed, the answer is provided by the words in the earlier part of the same subsection (1), namely:

"Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations."

20. That indicates that the operations which have to be substantially completed are those the carrying out of which constituted a breach of planning control.
21. Not all operations, whether building or of other kinds, amount to a breach of planning control. Section 171 A(1) tells one what is meant by the words "a breach of planning control." It provides:

"For the purposes of this Act -

(a) carrying out development without the required planning permission; or

(b) failing to comply with any condition or limitation subject to which planning permission has been granted, constitutes a breach of planning control."

22. I therefore conclude that the operations to which regard is to be had when considering the issue of substantial completion are those which amount to development within the meaning of the Act, because only in that way, putting aside paragraph (b) of section 171A(1) for the moment, does one have a potential breach of planning control.
23. "Development" itself is defined by Section 55 of the Act. Section 55 in so far as material for present purposes provides:

"(1) Subject to the following provisions of this section, in this Act, except where the context otherwise requires, "development", means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.

[(1A) For the purposes of this Act 'building operations' includes -

(a) demolition of buildings;

(b) rebuilding;

(c) structural alterations of or additions to buildings; and

(d) other operations normally undertaken by a person carrying on business as a builder.]

(2) The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land -

(a) the carrying out for the maintenance, improvement or other alteration of any building of works which –

(i) affect only the interior of the building, or

(ii) do not materially affect the external appearance of the building..."

24. Pausing just on Section 55(1) for the moment, I for my part accept Miss Robinson's argument that works yet to be carried out have to be development within the meaning of that first subsection if they are to be taken into account when deciding the issue of substantial completion. In the present case, that means that it is necessary that they should amount to building operations (or other operations) as defined in section 55(1A.) It does not seem that the inspector applied his mind to that, perhaps understandably because the relevant circular issued by the department, Circular 10/97, did not suggest that he should have done so.
25. But the matter goes one stage further. Section 55(2)(a) is also of relevance. I cannot accept Mr Baraclough's argument that that paragraph is of no application unless there is a completed building, whatever that may mean. The words used in that particular paragraph (a) are "the maintenance improvement or alteration of any building", with no reference whatsoever to a completed building. However, "building" is itself defined specifically by section 336(1) of the Act as including:

"Any structure or erection and any part of a building as so defined, but does not include plant or machinery comprised in a building."

26. That is patently a very broad definition, and it will certainly encompass the structure described as Building A in the present case. Of course section 55(2)(a) will only apply when one has a building capable of alteration or improvement or indeed maintenance, but that is not very restrictive. Certainly one could have alterations and improvements to a structure or erection which could not be occupied. Clearly also, the exclusion described by subparagraph (i) of section 55(2)(a), that is to say works which "affect only the interior of the building", can in practice only apply when the building, as defined by section 336(1), is one which has an interior. But that does not prevent section 55(2)(a) applying to buildings where some further works remain to be done; and no one suggests that Building A in the present case does not have an interior. It seems to me that section 55(2)(a) is of relevance, therefore, in the present case, and indeed as part of the approach generally to be adopted under section 171 B(1).
27. It follows that operations falling within the scope of section 55 2(a) do not constitute development even though they may be building operations, and therefore that such operations cannot themselves amount to a breach of planning control. Such works cannot in consequence fall within the reference to "operations" in section 171 B(1), because the operations covered by that subsection are only those the carrying out of which amount to a breach of planning control.
28. In short, what has to be substantially completed before time starts to run are the operations which amount to a breach of planning control. Any works which do not come into that category are not required for there to be substantial completion. This was in essence the reasoning of the deputy judge, with which I agree. It is of course still a matter of fact and degree whether there has been substantial completion of those operations amounting to development, but the judgment of fact and degree is to be exercised within that legal framework.
29. The decision in the Ewen Developments was dealing with a quite different matter, namely whether in that particular case there was a single engineering operation or more than one, so that the operation or operations carried out more than four years before enforcement action were immune. But on either approach the single operation or the multiple operations were development. The court concluded that in that particular case the works amounted to a single operation.
30. In the present case, there is no doubt that the erection of the building was a single operation. The only question was whether it was substantially complete before the four-year deadline. That is a different question from that arising in and determined by Ewen Developments.
31. I conclude that, as a matter of law, operations and other works which do not amount to development are not to be taken into account in deciding whether there has been substantial completion within the meaning of section 171 B(1). As the deputy judge pointed out, where all the operations amounting to development have been carried out there is nothing remaining against which the local planning authority could take enforcement action.
32. This approach is not one which should give rise to practical difficulties. Internal works and works which do not materially affect the external appearance of a building are less visible anyway to a planning authority seeking to operate planning control. It can and should act on its observation of operations amounting to development without planning permission. Those tend to be the more obvious works. The planning inspector did not in my judgment approach this part of his decision correctly as a matter of law. The decision needs to go back for reconsideration and redetermination.
33. Given the view which I have taken on this main issue in this appeal it is unnecessary to address the additional grounds on which the respondent would seek to uphold the judgment of the court below.
34. I would dismiss this appeal.
35. SIR MURRAY STUART-SMITH: I agree that the appeal should be dismissed for the reasons given by my Lord.
36. LORD JUSTICE SCHIEMANN: I also agree with the judgment that has been delivered. I only add this. It is desirable to bear in mind when construing the statute the purposes for which it was enacted. Time was when an owner of land could do what he pleased with it, subject to not infringing his neighbours' rights. The planning legislation circumscribes that right in order to achieve some gains for the public at large. We can obtain some idea of what was in the mind of the legislator by looking at the provisions in the Act in relation to the preparing of structure plans and local plans and the special controls contained in that Act and in the provisions now contained in the Planning Listed Building and Conservation Areas Act 1990.
37. The definition of operational development in section 55(1) is wide, and it is no doubt because of this that section 55(2)(a) was inserted. What happens inside the building is of no general concern to outsiders and there is no reason why the owner's rights should in general be restricted in the public interest. The same goes for changes in the building which do not materially affect its external appearance. I can see no policy reason why we should construe section 55(2)(a) as limited in its application to buildings which have been completed according to some notional plan.
38. It is to be observed that Enforcement Notices are by section 172(1) only to be served where it is considered expedient to do so, by which it is meant that it is considered to be in the public interest. Again one would not expect an enforcement notice to be serveable in respect of matters which do not engage the public interest in that sense. Clearly section 171B was designed to give planning authorities enough time to detect breaches of planning control but also to allow it to be assumed that something is lawfully there if planning authorities have not taken any steps within that time to secure its removal. Construing the phrase "substantially completed" in the context of a building, I am presently inclined to the view (without the matter having been fully argued) that substantial completion has taken place when there is enough to enable a planning authority to judge whether or not the building has sufficient adverse effects to make it expedient to issue an enforcement notice. To that question the detailing of the fittings and finishings inside the building are of no relevance, but I agree with my Lord that the inspector does not seem to have kept in mind the distinction between the completion of the building as a dwelling so as to make it ready to be used, and the concept of substantial completion in the context of the four-year rule. But as I have indicated I am content to adopt the reasoning of my Lord as the reasoning for this judgment.
(Appeal dismissed with costs in favour of the Respondent; permission to appeal to the House of Lords refused).