Action by a local authority to demolish a building in a dangerous state under section 78 of the Building Act 1984 requires planning permission but section 196D of the Town and Country Planning Act 1990 provides a defence where the works are urgently necessary.
The High Court has dismissed an appeal against the demolition of a former chapel and schoolhouse within a conservation area for failure to obtain planning permission in Samuel Smith Old Brewery (Tadcaster) v Redcar and Cleveland Borough Council [2023] EWHC 878 (Admin).
The case concerned the former Arlington Chapel and School House in Saltburn-by-the-Sea, owned by the defendant and situated within the Loftus Conservation Area. The claimant owned the Arlington Hotel immediately adjacent to the property with which it shared a party wall.
The property was in poor condition, reports concluded it was unsafe to enter with it being economically unviable to repair. The defendant sought planning permission to demolish it in November 2021, but the claimant objected and the application was withdrawn.
Further reports in 2022 raised immediate safety concerns over falling debris and concluded that any attempt to undertake structural repairs would result in the collapse of the building. Even removing the debris was likely to have a similar outcome. The defendant was advised that demolition under section 78 without planning permission would be an offence but section 196D of the 1990 Act provided a defence where the demolition was urgently necessary in the interests of safety and health.
In November 2022, the defendant, exercising delegated powers, demolished the property. The claimant objected. Its application for an injunction to restrain the demolition was refused. However, it was permitted to bring a judicial review of the decision to demolish the property on the ground that without planning permission the decision was ultra vires.
The judge concluded section 78 of the 1984 Act did not abrogate the controls in the town and country planning legislation including the requirement to obtain planning permission for the demolition of an unlisted building in a conservation area. However, where action was taken by a local authority under the emergency measures in section 78, this would constitute a defence to prosecution for failing to obtain planning permission under section 196D of the 1990 Act. The defendant had acted lawfully in invoking section 78 to demolish the property since both structures had already started to collapse to the extent of creating a significant safety risk.
Louise Clark is a property law consultant and mediator
