QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|FIRST SECRETARY OF STATE|
|CHELMSFORD LOCAL PLANNING AUTHORITY||(RESPONDENTS)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR P COPPELL (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
"(1) 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 ends beginning with the date on which the operations were substantially completed."
"5. The appeals on ground (d) by Mr and Mrs Brown against the use of Plot B at "Paradise Lost" as a caravan site were originally on the basis that there had been a caravan on this plot for more than 10 years. There was no evidence submitted to substantiate this claim, which cannot succeed. However, at the inquiry the arguments under ground (d) were changed. It was asserted that the L-shaped combination of two mobile homes occupied by Mr and Mrs Brown and their family had been brought onto the site in the summer of 1998 and had been joined together at that time to make the present structure. This combined unit is used as a single family dwelling, has no wheels and cannot be dismantled without causing its complete disintegration. It is claimed that the joining together of these two old static caravans amounted to the substantial completion of a building operation used as a single family dwelling in the summer of 1998 and continually occupied as such since then. As these events occurred more than four years before 19 September 2002, it is argued that the appeals on this ground should succeed since the time limit for taking enforcement action set out in section 171B(1) of the 1990 Act as amended, had already expired by that date.
6. The Council contends that this development remains a mobile home and that the alleged development as use as a caravan site is correct. However, if the appellants cannot demonstrate, on the balance of probabilities, that building or other operational development associated with any structure on this site was not substantially completed on or before 19 September 1998 then the appeal on ground (d) should fail in any event. In the recent decision of the House of Lords in Sage v Secretary of State for the Environment, Transport and the Regions v Maidstone Borough Council (judgment handed down 10 April 2003), Lord Hobhouse of Woodborough indicated that a holistic approach has to be adopted to determining whether building works have been substantially completed. In this instance, one of the old static caravans in particular was in a very bad state structurally at the time of its arrival on the site and most of its fabric, both internally and externally has had to be replaced as a continual operation throughout the period of time it has been on site.
7. Moreover, both this unit and the adjoining unit have been clad in timber. Bradford MDC v Secretary of State for the Environment  JPL 177 indicates that cladding a building does not fall within what is now section 55(2)(a) of the 1990 Act. A photograph of the residential unit taken on 1 October 2001 (Photo 9A) shows the structure without cladding. Applying the House of Lords holistic test to substantial completion of a building, as set out in Sage, I take the view that this did not take place until the cladding was added to create the present external appearance of the structure, if that is what it is. This did not take place until after 1 October 2001, ie well after 19 September 1998. Therefore, I am satisfied that the appellants have not demonstrated, on the balance of probabilities, that building works were substantially completed before 19 September 1998 and the appeal on ground (d) fails . . . "
"When an application for planning consent is made for permission for a single operation, it is made in respect of the whole of the building operation. There are two reasons for this. The first is the practical one that an application for permission partially to erect a building would, save in exceptional circumstances, fail. The second is that the concept of final permission requires a fully detailed building of a certain character, not a structure which is incomplete. This is one of the differences between an outline permission and a final permission: see s.92 of the Act. As counsel for Mr Sage accepted, if a building operation is not carried out, both externally and internally, fully in accordance with the permission, the whole operation is unlawful. She contrasted that with a case where the building has been completed but is then altered or improved. This demonstrates the fallacy in Mr Sage's case. He comes into the first category not the second.
"The same holistic approach is implicit in the decisions on what an enforcement notice relating to a single operation may require. Where a lesser operation might have been carried out without permission or where an operation was started outside the four year period but not substantially completed outside that period, the notice may nevertheless require the removal of all the works including ancillary works."
" . . . it makes better sense of the legislation as a whole to adopt the holistic approach which my noble and learned friend [Lord Hobhouse] has described. What this means, in short, is that regard should be had to the totality of the operations which the person originally contemplated and intended to carry out. That will be an easy task if the developer has applied for and obtained planning permission. It will be less easy where, as here, planning permission was not applied for at all. In such a case evidence as to what was intended may have to be gathered from various sources, having regard especially to the building's physical features and its design.
"If it is shown that all the developer intended to do was to erect a folly, such as a building which looks from a distance like a complete building - a mock temple or a make-believe fort, for example - but was always meant to be incomplete, then one must take the building when he has finished with it as it stands. It would be wrong to treat it as having a character which the person who erected it never intended it to have. But if it is shown that he has stopped short of what he contemplated and intended when he began the development, the building as it stands can properly be treated as an uncompleted building against which the four-year period has not yet begun to run.
It must be emphasised that it is not for the inspector to substitute his own view as to what a building is intended to be for that which was intended by the developer . . ."
"I take the view that this [that is substantial completion] did not take place until the cladding was added to create the present external appearance of the structure, if that is what it is."