The risks attending those who alter buildings extensively without the benefit of planning permission have just been thrown into sharp relief by the Court of Appeal which handed down judgment in the case of Williams v Secretary of State for Communities and Local Government and Chiltern District Council  EWCA Civ 958 on the 26th July 2013.
If the works appear to a planning authority to demolish the former building – even if it is not entirely demolished but “substantially demolished” such that the effect of the works is judged to be “a new building” – an enforcement notice may require the complete demolition of the new building, notwithstanding the fact that before the breach there was a building on the site.
The Court of Appeal so held in allowing the Secretary of State’s appeal against the decision of HHJ Anthony Thornton QC ( EWHC 3466 (Admin)) and upholding the decision of an Inspector to require the demolition of a substantial barn in the green belt.
The case concerns the site of a former agricultural barn in the green belt near Amersham. The facts as found by the Inspector were that planning permission existed to alter and extend the building to provide ten stables and associated facilities. In the course of construction, engineering difficulties forced an alteration of the design, as a consequence of which the resulting building was significantly different from that approved and did not represent the implementation of the permission. All that remained of the former barn were vertical steels which had been encased in brick and used to support the new first floor.
The Council had accepted in evidence that the same degree of demolition could have lawfully been employed to produce the permitted development. Nevertheless the enforcement notice stated the matters constituting the breach of planning control were “the erection of a new building” and required it to be demolished. They did not take the opportunity, as they could have done, to require the owner to remedy the breach by making the building accord with the terms of the permission granted. Nor, argued Mr Williams, did their requirements restore the site to its condition before the breach took place. Before the breach there was a building on the site.
Mr Williams challenged the enforcement notice as unlawful before the Inspector and the court. He also argued in the alternative that the Inspector’s reasoning was deficient for failing to grapple with his argument on the law. However, the Secretary of State’s defence of his Inspector succeeded. The main points were
1) Since the effect of the development was the erection of a new building, it matters not that the development involved works to a pre-existing structure – West Bowers v Essex County Council (1985). See paragraph 39 of the Judgment.
2) Demolition and construction are distinct – whether or not they were part of the same operation they were in planning terms separate and planning permission was only needed for the erection of the building – Iddenden v Secretary of State for the Environment (1972) per Denning MR. See paragraph 40-41 of the Judgment.
3) Requiring the construction of a replacement building was not mandatory by virtue of section 173(6). See paragraph 41 of the Judgment.
4) There were unchallengeable findings of fact against the contentions of Mr Williams – in particular a finding of fact that the breach was and was only the erection of a new building. See paragraph 42 of the Judgment.
5) The reasons were adequate. See paragraph 43 of the Judgment.
At the time the works were undertaken, the demolition of buildings such as the former barn were excluded from the definition of development by Order. The position has changed, but the Court of Appeal has not grappled with the question whether that will alter the relevant principles. In these circumstances, those who alter buildings extensively and do not benefit from planning permission to do so run the risk that the local planning authority will enforce against the erection of a new building, and require its outright demolition.
Whether that is appropriate will depend ultimately upon arguments of planning judgment. The existence of a ground A appeal (an application for planning permission for the whole or any part of the development enforced against) may be crucial in avoiding such an extreme measure (see paragraphs 3 and 45 of the Judgment).
This note has been prepared by Harriet Townsend who acted for Mr Williams at the enforcement appeal Inquiry and thereafter in court.