Sage advice

It has been a turbulent year for lawyers and professionals involved in the planning sector. The coalition government's abolition of regional spatial strategies which impinged on the vast majority of the development planning system has, in places, left a vacuum. However, practical case law continues to feature in day-to-day decision making and 2010 saw the return of a case which maintains its influence on planning enforcement.

Planning enforcement notices '“ one of the means by which a council controls development that it considers has been carried out without the benefit of planning permission '“ were put to the test once again by the reemergence of Sage v Secretary of State for the Environment, Transport and the Regions [2003] UKHL 22.

Sage came back to the surface in more than one case, but its relevance to one ofthe biggest planning stories of the year '“ a dispute between glass manufacturers: Ardagh Glass and Quinn Glass [2009] EWHC 745 (Admin) '“ was significant.

Sage concerned the construction of a dwelling. The construction process had reached a reasonably advanced stage but the building was not fit for human habitation, with no staircase between the two floors, no glass in the windows and so on.

Apart from arguing that the building was agricultural and not a dwelling, Mr Sage contended that an enforcement notice served by the local planning authority was out of time because substantial completion had occurred more than four years before service of the notice, according to section 171b of the Town and Country Planning Act 1990 (see box).

Mr Sage argued that the statutory provision applied to the operations that were the subject of the alleged breach in the enforcement notice (in this case a partially built dwelling), and that further works could be ignored when deciding whether or not building operations were substantially complete.

That argument succeeded as far as the House of Lords but, in a now well-known passage, Lord Hobhouse of Woodborough commented: '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 a final permission requires a fully detailed building of a certain character, not a structure which is incomplete'¦ if a building operation is not carried out, both externally and internally, fully in accordance with the permission the whole operation is unlawful.'

Following that judgment, both developers and local planning authorities were concerned with the degree to which variation from consented plans meant that a whole development was rendered unlawful.

Substantial completion

The Ardagh Glass case threw up a different issue: when, in the course of an extensive or complex development, it might be said that the point of substantial completion is reached. The case concerned the construction of a large glass factory. Although consent had been obtained for the development of a glass factory at the site, that consent had not been implemented. Instead the developer proceeded with the construction of a factory that was different (larger) than that for which consent had been granted.

Rival glass manufacturers, Ardagh, wanted the LPA to take enforcement action against the developer (Quinn Glass). One issue that arose is when the factory might achieve immunity from enforcement action. As a consequence, it was important to consider the point in time when the operations achieved substantial completion.

The LPA's position was that substantial completion would occur when all of the works necessary to give the structure its character as a glass manufacture, filling, and distribution facility had taken place.

The judge rejected the LPA's contention. He said the first question to address when considering sub-section 171B(1) was 'what are 'the operations' in question'? The judge stated that in the case of a simple development, such as a single dwelling house, the answer may be clear. It may be less clear where a complex development, such as a factory, may be regarded as comprising many operations (albeit capable of falling within one planning application).

The judge concluded that it is possible for a development to be made up of several distinct elements, each one carried out by means of its own separate and distinguishable operations and each capable of being substantially completed and obtaining its own immunity from enforcement action.

Such an approach gives rise to potential dangers for a local planning authority. By regarding an entire development in its totality, a local planning authority is able to judge with reasonable precision when that development has reached substantial completion. If that development is to be considered as a series of separate operations, the local planning authority must first identify those separate operations. Thereafter it must identify the point in time at which substantial completion was reached for each of them. All of that may increase the risk of a set of operations obtaining immunity.

Cross purposes

Another potentially tricky issue arising out of the time limits relating to immunity for enforcement cropped up in the case of R (on the application of Sumner) v Secretary of State for Communities and Local Government [2010] EWHC 372.

Section 171b of the TCPA sets out the time limits for immunity from enforcement. That section makes it clear that immunity from enforcement action will accrue after four years where the development in question comprises building operations. By contrast,if the development comprises a material change of use (excluding use to a single dwelling house) the relevant period is ten years.

It might be assumed that where a building is constructed with a certain character and the building has become immune for action, it is also lawful to use the building for its intended purpose. However, the High Court has recently taken a different view.

Sumner concerned a building that had been constructed for the purpose of carrying out vehicle repairs on land that had a lawful use for agriculture, the keeping of horses, and as a builders' yard. The local planning authority issued an enforcement notice against the construction and use of the building. On appeal, the inspector found that the building had been substantially complete for in excess of four years and used for its intended purpose throughout this period, but that the use or activity had been carried on for less than ten years.

While the inspector found the building to be immune from enforcement action, he also found that the use of the building for its intended purpose was not. The notice was therefore upheld (in part) and required the use of the building for vehicle repairs to cease. The landowner challenged that decision.

The challenge failed, with the court confirming the inspector's view that, while a building would become immune from enforcement after four years, the use of that building would only become lawful after ten years. The court stressed the distinction, drawn in the TCPA, between operational development and material change of use.

The judge in Sumner did not consider that the result of his decision would lead to uncertainty, because it would be open to a person seeking to establish immunity to apply for a certificate of lawful existing use or development (pursuant to section 191 of the TCPA), which would indicate the extent to which any use of or presence of any building on the land is lawful. Nor did he accept the argument that it would be contrary to any sensible interpretation of the planning system that a building could not be used for its intended purpose and was therefore likely to remain unused. First, the building could be used for the lawful use of the land. Second, it would be open to the owner or user of the land to make an application for planning permission for the use of that building for an alternative purpose.

In reaching his view, the judge commented that a person benefitting from the provisions concerning immunity from enforcement should not, in fairness, be treated in the same way as a person that has been through the proper procedures and applied for planning permission. He said: 'If an individual chooses to erect a building without planning permission intended to be used for a purpose which has no planning permission then as it seems to me he inevitably runs the risk that he will have to remove the building if enforcement action is taken in time against it, or cease the use equally if enforcement action is taken in time against that use. He cannot be placed in the same position as if he had obtained planning permission.'

The Sumner case is an important one. However, bearing in mind the approach taken in Sage, it might be not be the last word on the subject. In adopting the 'holistic' approach in Sage, and in assessing the date for substantial completion, the House of Lords had regard to the totality of operations that would be carried out to give the building its character and purpose. In doing so, an analogy was drawn with an application for planning permission. In particular, it was noted that any application for planning permission would require details of a building of a certain character to be submitted, and that it would be unacceptable for details of an incomplete structure to be submitted. The lords considered that the same approach should be applied in the enforcement context.

As a consequence, time will only start to run for the purpose of the immunity provisions from the point when a building is substantially completed as a building with a certain character, and not simply when the shell is completed. However, following Sumner, only the shell will become lawful after four years, the character or purpose of the building being irrelevant at that point in time, and enforcement will remain possible against the use of that building for up to ten years.