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Appellant fails in High Court challenge to decision by inspector on enforcement notice and erection of “new building”

The High Court has ruled against an applicant in a planning case over whether or not a building was completed.

In Devine v Secretary of State for Levelling Up Housing and Communities [2022] EWHC 2031 Mr Justice Fordham rejected an appeal by resident Barry Devine against the ruling by a planning inspector after Cheshire West and Chester Council served an enforcement notice on him over unauthorised development in green belt land.

Mr Devine appealed arguing that that operations carried out since he purchased the site as a disused barn in 2000 did not involve any new building and no enforcement action could be taken as being anyway out of time.

He then secured permission to take the inspector’s decision to appeal on the time limit point only of whether the inspector made a decision erroneous in law in concluding that the relevant building operations had not been substantially completed before the relevant date of 18 March 2015.

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The inspector had said Mr Devine needed to show, on the balance of probability, that the building operations comprising the erection of the building and/or the boundary wall and fence were substantially completed on or before 18 March 2015, four years before the date on which the notice was issued.

But significant building operations were undertaken after that, the inspector found, and by 2018 structural and elevational changes to the eastern wing deemed necessary for future residential use had been carried out.

Fordham J said in his judgment: “I cannot accept that there is a public law error which vitiates the inspector's determination on the time limit issue.

“In my judgment, the appellant's arguments are, on analysis, disagreements about evaluative decisions on matters of appreciation and judgment, falling well within the ambit of reasonableness and for which legally adequate reasons were given after taking account of relevant considerations.”

Mark Smulian

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