Introduction

The case of Devine v Secretary of State for Levelling Up, Housing and Communities ([2023] EWCA Civ 601) presents a significant examination of planning control enforcement within the Green Belt in England and Wales. The appellant, Mr. Barry Devine, challenged an enforcement notice issued by Cheshire West and Chester Council for the unauthorised construction of a new building replacing an existing barn at Dones View Farm, Northwich Road, Dutton, Northwich. The central legal issue revolves around whether the construction was "substantially completed" more than four years before the enforcement notice was served, thereby invoking immunity under section 171B of the Town and Country Planning Act 1990.

Summary of the Judgment

The Court of Appeal upheld the decision of Fordham J., who had dismissed Mr. Devine's appeal against the enforcement notice. The judge found that significant building operations, including the replacement of the entire roof structure and other structural changes necessary for residential occupancy, were undertaken after the relevant four-year period. Consequently, the construction was not substantially completed before the enforcement notice was issued, rendering the action by the local planning authority lawful. The appellant's arguments that the works constituted mere repairs and that the original barn had been substantially maintained were rejected.

Analysis

Precedents Cited

The judgment extensively references several key precedents that shaped the court's reasoning:

• Sabre v Secretary of State for the Environment (Sage v Secretary of State for the Environment, Transport and the Regions [2003]): This case clarified the distinction between repair and rebuilding, emphasizing the importance of assessing the physical and design features of a structure to determine its character and purpose.
• Ewen Developments Ltd. v Secretary of State for the Environment [1980], Howes v Secretary of State for the Environment [1984], and Somak Travel Ltd. v Secretary of State for the Environment [1987]: These cases underscored the "holistic approach" in evaluating whether ancillary works accompanying a primary development might trigger enforcement actions even if some components fall outside specific regulatory periods.
• Oates v Secretary of State for Communities and Local Government [2018] EWCA Civ 2229: This Court of Appeal decision reinforced that the retention of some original fabric does not preclude the emergence of a new building, depending on the extent and nature of the new works.
• Hillside Parks Ltd. v Snowdonia National Park Authority [2022] UKSC 30: This case provided further insights into the interpretation of planning permissions and the onset of enforcement authorities.

Legal Reasoning

The court's legal reasoning centered on several principles:

• Substantial Completion: The court evaluated whether the construction was substantially completed before the relevant four-year period ended. The inspector determined that significant structural works, such as the complete replacement of the roof and major alterations to the walls, were undertaken after the designated date, negating immunity.
• Repair vs Rebuilding: The distinction between mere repairs and rebuilding was pivotal. While the appellant argued that his works were repairs to the existing barn, the court found that the extent and nature of the alterations effectively transformed the original structure into a new dwelling house.
• Purpose vs Intention: The court emphasized the objective assessment of the building's purpose based on its physical and design features rather than the subjective intentions of the developer. The inspector's focus on the building's appearance and structural changes was deemed appropriate and lawful.

Impact

This judgment has several implications for future cases and the broader area of planning law:

• Clarification on Substantial Completion: The decision provides a clearer framework for assessing when a construction project is considered substantially completed, especially concerning the timing of significant structural changes.
• Enforcement of Planning Controls: Local planning authorities are reinforced in their ability to enforce planning controls against unauthorized developments, even if some works fall outside specific immunity periods.
• Objective Assessment of Building Purpose: The emphasis on evaluating the physical and design features of a structure over the developer's stated intentions underscores the objective nature of planning assessments.

Complex Concepts Simplified

Substantial Completion

Substantial completion refers to the stage in a construction project where the work is sufficiently complete, in relation to the use intended for the building, allowing it to be used for its intended purpose. In this case, the court examined whether the building operations were completed within four years to determine if enforcement actions could be taken.

Repair vs Rebuilding

The distinction between repair and rebuilding lies in the extent of the work undertaken. Repairs typically involve fixing or maintaining existing structures without altering the building's fundamental character. Rebuilding, on the other hand, signifies significant modifications that can transform the original structure into a new entity, as seen with the transformation from a barn to a dwelling house.

Purpose vs Intention

Purpose refers to the objective function and design of a building based on its physical attributes and layout. Intention relates to the subjective aims or plans of the developer regarding the building's use. The court highlighted the importance of assessing the building's purpose based on its physical features rather than solely relying on the developer's stated intentions.

Conclusion

The Court of Appeal's decision in Devine v Secretary of State for Levelling Up, Housing and Communities reinforces the integrity of planning controls in safeguarding the Green Belt from unauthorized developments. By affirming the inspector's comprehensive assessment of substantial building operations and distinguishing between repairs and rebuilding, the judgment provides clear guidance for both developers and local authorities. The emphasis on an objective evaluation of a building's purpose ensures that planning decisions are grounded in factual and visible characteristics, thereby maintaining consistency and fairness in the application of planning law.