Ian Caldwell & Anor v The Secretary of State for Levelling-Up, Housing and Communities & Anor
[2023] EWHC 2053 (Admin)
Barry Devine v Secretary of State for Levelling Up, Housing and Communities
25 May 2023
[2023] EWCA Civ 601
Court of Appeal
Mr. Devine rebuilt his barn, making it into a house without permission. The council said he had to take it down because the work wasn't finished until after the four-year limit for challenging the building work had passed. The court agreed with the council.
Key Facts
- •Mr. Barry Devine appealed against an enforcement notice issued by Cheshire West and Chester Council for unauthorised construction of a building on his Green Belt property.
- •The notice alleged the erection of a new building, replacing an existing barn, and the erection of a boundary wall and fence.
- •Devine argued the works constituted repairs and improvements, completed over four years before the notice, thus enjoying immunity from enforcement under section 171B of the Town and Country Planning Act 1990.
- •The inspector dismissed the appeal, finding the works cumulatively resulted in a new building, not substantially completed before the relevant date.
- •Fordham J. upheld the inspector's decision, and Devine appealed to the Court of Appeal.
Legal Principles
Enforcement action cannot be taken after four years from substantial completion of unauthorised building operations.
Town and Country Planning Act 1990, section 171B(1)
Appeal grounds include whether enforcement action could be taken at the notice's issuance date.
Town and Country Planning Act 1990, section 174(2)(d)
Determining whether works constitute a 'new building' involves factual assessment of the cumulative effect of works and whether the original building has ceased to exist.
Oates v Secretary of State for Communities and Local Government and Canterbury City Council [2018] EWCA Civ 2229
The character and purpose of a structure are assessed by examining its physical and design features; the actual use doesn't alter this.
Sage v Secretary of State for the Environment, Transport and the Regions [2003] 1 W.L.R. 983
'Building operations' include structural alterations, additions, and operations normally undertaken by a builder, but excludes works not materially affecting external appearance.
Town and Country Planning Act 1990, section 55(1), (1A), (2)(a)
Outcomes
The Court of Appeal dismissed Devine's appeal.
The inspector's approach was lawful. He correctly considered the cumulative effect of the works, concluding they created a new building (dwelling house) not substantially completed before the four-year period. The inspector's consideration of Devine's intentions was not an error of law, as it was consistent with the objective purpose of the structure.
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