Brown v Brown

J U D G M E N T

1. MR JUSTICE MCCOMBE: This is an appeal by Mr Richard Brown and Mrs Paula Brown, whom I shall call the appellants, under section 289 of the Town and Country Planning Act 1990. By an order of 5 September 2003 of HHJ Rich QC, sitting as a judge of this court, it was ordered that the appellants be granted permission to appeal on two of the grounds raised by them. The respondents to the appeal are the Secretary of State and the Chelmsford Borough Council. The appeal is against a decision dated 10 June 2003 made by a planning inspector appointed by the Secretary of State on an appeal to him by the appellants against enforcement notices issued by the Council in respect of the appellants' premises known as "Paradise Lost", Meadow Land, Runwell, Wickford, in Essex.

2. Enforcement notices were issued by the Council on 19 September 2002, and I was told that the relevant notices for the purposes of the present appeal are those with the following references: APP/W1525/C/02/1101940, and all the letter references up to the final /1101941. By those enforcement notices the Council identified the following breach of planning control, namely the change of use of the land to use as a caravan site. On perusal of the papers, including paragraph 2 of the skeleton argument of Mr Coppell for the Secretary of State, it had seemed to me that other notices may also be material, but I was assured at the hearing that the only relevant ones were those which I have now identified. Before the inspector, the appellants' case was that, during the summer of 1998, they had erected on the land a building described as an "L-shaped combination of two mobile homes". The two homes were brought to the site separately. They were then bolted together. Sections of internal walls were removed to allow access and to permit the structure as a whole to be used as a residence. This structure was attached to a brick foundation and was connected to services such as electricity, water and sanitation. It had no wheels and, as found by the inspector, it could not be dismantled without causing its disintegration.

3. The appellants have used the edifice so constructed as their family home since that time. Since the summer of 1998 works have been carried out to the structure as and when necessary, and in respect of one of the mobile homes, over the years, its fabric has been largely replaced.

4. Further, at some point after 1 October 2001, the appellants added wooden cladding to the exterior of the conjoined structure that I have endeavoured to describe. The appearance of the structure prior to the cladding work can be seen in the photograph referred to in the decision letter as "photograph 9A", a copy of which was produced to me at the hearing of this appeal.

5. The appeal against the enforcement notices was based upon section 174(2), paragraph (d) of the 1990 Act, namely on the basis that, at the date of the issue of the notice, that is 19 September 2002, no enforcement action could be taken in respect of any breach of planning control constituted by the matters stated in the notice. That contention was itself based upon section 171B of the Act, of which sub-section (1) is relevant:

"(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."

6. The appellants submit that any breach of control, consisting in the carrying out without permission of building or other operations on the land, is not subject to enforcement action because the operations were substantially completed over four years before the issue of the notice. The inspector's findings and his decision on this contention are to be found in paragraphs 5 to 7 of his decision letter. The quotation is lengthy, but I feel it appropriate to read the relevant passages:

"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[1978] 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 . . . "

7. Thus, the appeal to the Secretary of State was dismissed and the enforcement notice was upheld with certain immaterial variations. The neutral citation of the case of Sage mentioned in the passage of the inspector's decision, which I have quoted, is: Sage V Secretary of State[2003] UKHL 22.

8. On the present appeal, the appellants' submissions are, first, that the inspector misapplied the test formulated in Sage and/or failed to set out proper reasons for that conclusion, and, secondly, that the inspector failed to set a reasoned conclusion as to whether the erection of the building and the addition of cladding to it and/or the repair works were separate building operations and should be treated separately.

9. On these points I have read and heard admirably presented arguments for Mr and Mrs Brown and the Secretary of State, respectively, from Miss Peter and Mr Coppell. I have listened to those arguments with interest and they assisted me greatly in deciding this appeal. I was of course referred to the speeches in the House of Lords in Sage[2003] 2 All ER 689, and I refer to that report in this judgment.

10. In that case, Mr Sage, the developer, had erected a building which, the inspector concluded, was constructed as a dwelling house. It was, however, an unfinished dwelling house. The floor at ground level consisted of rubble; there was no service fitting and no staircase; the interior walls were without lining or plaster; none of the windows were glazed; there was no guttering; no relevant work had been done within the four years prior to the issue of the relevant enforcement notice. Mr Sage contended that the relevant operations had been substantially completed more than four years before the issue of the notice because the work remaining to be done did not of itself require planning permission. The planning authority argued that the question was whether the building had been substantially completed, and if so, when. The inspector decided in favour of the authority. The building had not been substantially completed and, therefore, he upheld the notice.

11. On appeal to this court the deputy judge allowed the appeal and held that the relevant building operations were complete when those activities which require planning permission were so completed. That decision was upheld in the Court of Appeal. On appeal to the House of Lords, the appeal was allowed. Lord Hobhouse of Woodborough, in a speech with which all the rest of their Lordships agreed (in the case of one of their Lordships, Lord Scott of Foscote, "in general terms"), said that the contention of Mr Sage was contrary to what he describes as the "holistic approach" upon which this part of the planning law is based: see paragraph 22 of the speeches at pages 696 C to D of the report. His Lordship then continued.

"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."

12. Lord Hope of Craighead in his speech said the following:

" . . . 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 . . ."

13. Miss Peter, for the appellants, submits that it is nowhere clear in the inspector's decision that he properly considered the test propounded in Sage so as to identify the totality of the operations which the appellants originally contemplated and intended to carry out. She submits that, in the end, the inspector did what Lord Hope said was impermissible, namely to substitute his own view as to what a building was intended to be for that which was intended by the developer. She says this is particularly apparent in the passage in paragraph 7 of the decision, which I have already read but I will repeat, where he says the following:

"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."

14. Further, Miss Peter submits that, unlike Sage's case itself, this is a case of a completed building which was then altered or improved, thus falling within the second of the categories identified by Lord Hobhouse in paragraph 23 of the speeches in the House of Lords. Miss Peter goes on to argue that what the inspector has done is to compare the building at the date of the appeal with the building in the summer of 1998, and has concluded that the building in its earlier state was not complete, without regard to what the appellants' contemplation or intention was when the breach of control occurred, namely in 1998.

15. In support of the second ground of appeal, Miss Peter submits by reference to the decisions in Bradford City Metropolitan Council v Secretary of State(1978) JPL 177, and Worthy Fuel Injection Limited v Secretary of State(1983) JPL 173, that the cladding of this structure could itself be a relevant development under the Act and that therefore the inspector was bound to consider and decide whether the cladding work here was a separate building operation. She submits he failed to do this and that his decision should, therefore, be quashed.

16. Mr Coppell, for the Secretary of State, reminded me very courteously that this was an appeal under section 289 of the Act and that the court can only interfere if the appellant demonstrates that there has been an error of law. He submits that the question whether building operations have been substantially completed is clearly a matter of fact and degree, and that therefore unless the inspector's methodology is flawed or his decision is one to which no reasonable inspector could have come, it is not open to this court to interfere. He argues that one must bear in mind the evidence before the inspector and the nature of the case advanced to him.

17. Mr Coppell points out that there is no criticism of the evidence identified by the inspector as being relevant to the issues and no suggestion that he failed to take into account any material factual matter. Thus, submits Mr Coppell, this was simply a case in which the appellants failed to discharge the burden of establishing that the relevant building operations were substantially complete before the relevant date. It is not suggested that any relevant evidence going to the appellants' intentions in 1998 has been ignored.

18. Mr Coppell further argues that one must have regard to the inspector's decision as a whole on this aspect of the case. It is therefore illegitimate to concentrate, as he submits Miss Peter does, on paragraph 7 alone. He argues that, on proper analysis, the inspector identified the process of joining the two mobile homes together. He referred to the continual operation of necessary replacement throughout the period of the internal and external repairs to the fabric of one of the units and finally the cladding. Mr Coppell submits that the inspector found, and was entitled to find, that this programme as a whole constituted the relevant building operations which were required to be substantially completed before 19 September 1998 if the appellants were to have succeeded. That is to be inferred, he submits, from the tenor of the inspector's decision as a whole and it was not necessary therefore for him to spell out and apply more fully the test emerging from Sage's case, which was obviously in his mind.

19. It is clear, Mr Coppell submits, that the true intentions of the appellants could be derived from those aspects of the evidence which he cites. It is not suggested that any other evidence is relevant.

20. Having considered those arguments, in their essential terms, I agree with Mr Coppell's submission. When one considers paragraphs 5, 6 and 7 of the decision as a whole, it seems to me to be clear that the inspector was applying his mind to the poor structural state of one of the old caravans "at the time of its arrival on site", necessitating a continuous operation of work from the outset. That is the operation which must have been contemplated by the appellants.

21. After considering that, he begins paragraph 7 with the word "moreover" when he turns to the question of the cladding works. He is indicating that those works form part of a continuum. He was, therefore, entitled to conclude, or in his words to "take the view", that applying the test set out in Sage substantial completion did not occur until the final part of the operation, namely the cladding, was completed. No other evidence as to the appellants' intentions in 1998 has been identified as bearing upon the point, nor is it suggested on the hearing of this appeal that there was other evidential material before the inspector, demonstrating the appellants' contemplation or intention, which the inspector should have taken into account but did not. Therefore, on the material before him, the inspector could, in my view, lawfully conclude that the ground of appeal under section 174(2)(d), reliant upon section 171B, had not been made out.

22. As for the second ground of appeal before me, I agree again with Mr Coppell that there is no indication in the decision or in any other material before me that any case was advanced before the inspector that the cladding work should have been viewed as a separate building operation, nor for that matter that the repairs should have been so regarded. The real issue was the one which now constitutes the first ground of appeal. That issue itself only emerged on the day of the hearing of the appeal as the inspector indicates. It is not surprising, therefore, that the inspector did not address the more refined argument that has now become the second ground of the present appeal. Certainly it cannot be said that the inspector erred in law in not considering a case that was never advanced before him. For those reasons, therefore, this appeal to this court fails and is dismissed.

23. MR COPPELL: I am grateful, My Lord. The parties have agreed a summary assessment of costs.

24. MR JUSTICE MCCOMBE: Was that before me? I think I saw something.

25. MR COPPELL: I think it was. My Lord, the figure is £6,445.

26. MR JUSTICE MCCOMBE: I am sorry, maybe I mislaid it.

27. MR COPPELL: My Lord, may I hand it up?

28. MR JUSTICE MCCOMBE: No, I know what it was, I had seen a schedule on the other case that was before me at the beginning of the week. I have not seen one in this case.

29. MR COPPELL: The figure I have cited to your Lordship is a slight reduction on the figure shown in the schedule.

30. MR JUSTICE MCCOMBE: Yes, the figure you cited was?

31. MR COPPELL: £6,445.

32. MR JUSTICE MCCOMBE: Right, I better hear Miss Peter on the point of principle and then on quantum. Miss Peter, what do you say? Presumably you cannot resist a costs order as such.

33. MISS PETER: My Lord, I do not resist a costs order. I understand that the figures are agreed.

34. MR JUSTICE MCCOMBE: On that basis I will make an order for payment by the appellants of costs in the figure that has been mentioned by Mr Coppell.

35. MR COPPELL: I am grateful, my Lord.

36. MR JUSTICE MCCOMBE: Thank you both. I should say that my compliment to your arguments was not the mere idle statement that sometimes appears in judgments, I was generally grateful. Thank you.