Sage (Respondent) v. Secretary of State for the Environment, Transport and the Regions and others (Appellants)
31. First, where the breach consists of "building, engineering, mining or other operations" over land, enforcement action cannot be taken after four years from "the date on which the operations were substantially completed." (sub-section (1)). Second, where the breach consists of a change in the use of a building to use as a single dwelling house, enforcement action cannot be taken after four years "beginning with the date of the breach" (sub-section (2)). And, third, in the case of any other breach of planning control, enforcement action cannot be taken after ten years beginning with the date of the breach (sub-section (3)).
32. In the present case Mr Sage, without planning permission, commenced the building of a dwelling house. In 1994, however, while the dwelling house was still uncompleted he ceased his building works. The building, such as it then was, although uncompleted as a dwelling house, had reached a stage of construction in which it was capable of use for other purposes. It could, in particular, be used for agricultural purposes. Hay, straw or grain could be stored in it. Agricultural machinery of a size small enough to be manoeuvred through the single entrance door could be sheltered in it. Livestock or poultry could be kept in it.
33. The council served an enforcement notice on Mr Sage on 19 March 1999. This was more than four years after the building work had ceased. The issue before the Inspector centred on the question whether or when the building operations were "substantially completed". It is, in my opinion, important to notice how the argument proceeded before the Inspector and in the courts below.
34. The Inspector recorded in his Decision letter (para 22) that the issue was whether the building was an agricultural structure, as Mr Sage contended, or an uncompleted dwelling house, as the Council contended. In paragraph 26 the Inspector made the important finding that
This finding was not challenged in the courts below and was expressly accepted before your Lordships by counsel for Mr Sage.
35. Accordingly, in the courts below and before the House the argument was whether, for the purposes of section 171B(1) the building of the intended dwelling house, in the state in which the building works stood in 1994, was "substantially completed". My noble and learned friend Lord Hobhouse has analysed the arguments and concluded that the Inspector's decision that the building operations were not substantially completed was correct. On the premise that the Inspector was faced with an uncompleted dwelling house, I respectfully agree.
36. My concern, however, is with the premise. I have no doubt at all that the Inspector was right in concluding that what had been designed by Mr Sage and what he had been building was a structure intended for use as a dwelling house. But the classification of a building, for planning purposes and as a matter of common sense, is not immutable but can change if the use to which the building is put changes. It is a common feature in this country for agricultural barns to be converted into dwellings. Once the conversion is complete and use of the property as a dwelling commences, and perhaps at an earlier point of time, the classification of the building as a barn ceases to be accurate. Planning permission for any building operations involved in the conversion and for the change of use should, of course, have been obtained. But the change in the appropriate classification of the building, from agricultural barn to dwelling house, would not depend on whether planning permission had been obtained. It would be a question of fact.
37. Conversely, dwellings may become agricultural barns. There are throughout the countryside, usually well off the beaten track, innumerable examples of buildings which have been farm workers' cottages but which, with increasing agricultural mechanization, have become surplus to farming requirements and have, usually in some state of disrepair, become used for storage of hay or straw or for sheltering livestock. Planning permission is, I suspect, very rarely sought for this change of use, but here, too, classification of the building as a dwelling or as a barn is a question of fact, dependant on the permanency of the use to which it is being put and the intentions of the owner in that regard.
38. Just as change of use can change the appropriate classification of a completed building so, too, in my opinion, there can be no logical objection to the appropriate classification of a building in course of construction being changed by use, or by intentions for future use, of the uncompleted building inconsistent with its original classification. As with a completed building, the change could be either a change from an uncompleted agricultural building to an uncompleted dwelling, or a change from an uncompleted dwelling to an agricultural barn, whether completed or uncompleted.
39. For example, under the Town and Country Planning General Development Order 1988 (SI 1988/1813) planning permission is in general not necessary for the erection of a building which is reasonably necessary for the purposes of agriculture. A farmer who commenced the construction of such a building would not, by doing so, be in breach of planning control. But if, before the building operations were complete, his intentions changed and he began to install a bathroom and other features indicative of a dwelling, the operations would be in breach of planning control. Conversely, I suggest, in a case where the construction of a building as an additional dwelling has been commenced by a farmer but before the building is complete he changes his mind, decides to use the uncompleted building for agricultural purposes and actually does commence and continue that use, the classification of the structure as an uncompleted dwelling would no longer be accurate. The structure would have become an agricultural building.
40. The correct application of the section 171B time limits to a case where the building operations intended at the outset have not been completed but the use to which the structure has been put since the building operation ceased has changed the nature of the building from one which did require planning permission to one which did not may raise difficult questions of fact and law.
41. In principle, however, there must, in my opinion, be some time limit after which it would no longer be open for enforcement action in respect of the original planning breach to be taken. The present case may be taken as an example. The building works ceased in 1994. The enforcement action was taken in 1999. Let it be assumed that at some point between those two dates Mr Sage decided he would not complete the originally intended dwelling but would instead use the structure for his agricultural purposes and that he thereafter did use the structure for those purposes. It cannot, in my opinion, be the case that for an indefinite and open-ended period the Council would remain free to commence enforcement action contending that the structure still remained a substantially uncompleted dwelling house. Such a state of affairs would, in my opinion, be inconsistent with the scheme of section 171B.
42. These reflections are of no assistance to Mr Sage in the present case. There is no evidence of the use to which the uncompleted structure was put by Mr Sage in the period between 1994 and 1999. There are no facts in evidence which enable to be identified a date after which the 1994 structure could be regarded as no longer an uncompleted dwelling but as having become an agricultural building.
43. There have, naturally, been no submissions from counsel on either side as to how section 171B would have had to be applied if there had been such evidence. It seems to me, however, well arguable that it would no longer be open for enforcement action to be taken in respect of an uncompleted dwelling house if a period of more than four years had elapsed since the structure had become, de facto, an agricultural building. I think it is important to be clear that nothing in the result of the present case decides that issue. However, I agree that this appeal must be allowed and the order proposed by Lord Hobhouse should be made.
LORD RODGER OF EARLSFERRY
44. I have had the opportunity of reading the speech of my noble and learned friend Lord Hobhouse of Woodborough in draft. For the reasons that he gives I too would allow the appeal and make the order which he proposes.
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