Development — Partial removal of building — Intended demolition of buildings to provide car park — Whether works of demolition development — Whether ‘building, engineering or other operations’ — Whether relevant to consider whole project
A development
company, the owners of a pair of semi-detached houses in Milton Road,
Cambridge, demolished part of the buildings by the removal of roofing
materials. Their intention was to demolish the buildings completely and on the
cleared site to create a car park and carry out landscaping for the benefit of
an adjoining office development. The local planning authority served two
enforcement notices alleging a breach of planning control and requiring the
roofing materials to be replaced. On appeal by the company to the Secretary of
State for the
notices on the ground that the operations did not constitute development within
the meaning of section 22(1) of the Town and Country Planning Act 1971 (section
55(1) of the Town and Country Planning Act 1990) and thus did not require
planning permission. An appeal by the council to the High Court was allowed by
Mr David Widdicombe QC, sitting as a deputy judge, who held that the demolition
of the houses was a ‘building operation’, being an ‘other operation normally
undertaken by a person carrying on business as a builder’: [1991] 1 PLR 109.
The Secretary of State and the company appealed.
1. The deputy
judge made a finding of fact on a matter on which the inspector had made no
finding and on which there was no evidence in the written representations and
accordingly his conclusion could not stand: see pp 17G-18C and 20B-E. Further,
the inspector had not erred in not making a finding on the point: although he
must consider what appear to him to be ‘material considerations’, whether
canvassed by the parties or not, there were limits to the duty and he was not
obliged to cast about, trying to think of every issue which might be relevant.
The issues raised by the parties were a good indication of what they considered
relevant: see p 18C-F.
2. Demolition
of itself was not an ‘other operation’ within the meaning of section 22(1) of
the 1971 Act, whether or not it was to be followed by works or a change or use
which would constitute development: see pp 16H-17D, 18G-19B and 20E-21G.
Accordingly, the inspector’s order quashing the enforcement notices would be
restored.
Decision of Mr
David Widdicombe QC [1991] 1 PLR 109 reversed.
to in the judgments
Coleshill
& District Investment Co Ltd v Minister of
Housing and Local Government [1969] 1 WLR 746; [1969] 2 All ER 525; (1969)
68 LGR 344; 20 P&CR 679; [1969] EGD 736; 211 EG 727, HL
Iddenden v Secretary of State for the Environment [1972] 1 WLR 1433;
[1972] 3 All ER 883; (1972) 71 LGR 20; 26 P&CR 553, CA
Kirkness v John Hudson & Co Ltd [1955] AC 696; [1955] 2 WLR 1135;
[1955] 2 All ER 345, HL
London
County Council v Marks & Spencer Ltd
[1952] Ch 549; (1952) 50 LGR 396; 3 P&CR 14; [1953] AC 535; [1953] 2 WLR
932; [1953] 1 All ER 1095; (1953) 51 LGR 329; 3 P&CR 409, CA and HL
Parkes v Secretary of State for the Environment [1978] 1 WLR 1308;
[1979] 1 All ER 211; (1978) 77 LGR 39; 36 P&CR 387; [1978] EGD 973; 248 EG
595, [1978] 2 EGLR 143; [1979] JPL 33, CA
Prest v Secretary of State for Wales (1982) 81 LGR 193; 23 RVR 11;
[1983] EGD 282; 266 EG 527, [1983] 1 EGLR 17, CA
Appeal against
decision of Mr David Widdicombe QC
This was an
appeal by the Secretary of State for the Environment and Milton Park Investments
Ltd against the decision of Mr David Widdicombe QC, sitting as a deputy judge
of the Queen’s Bench Division, on January 11 1991 ([1991] 1 PLR 109) whereby he
allowed an
planning authority, Cambridge City Council, against the decision of an
inspector who had allowed appeals by the company against two enforcement
notices issued by the council relating to land at 21 and 23 Milton Road,
Cambridge.
Moriarty QC and Michael Kent (instructed by the Treasury Solicitor) appeared
for the first appellant, the Secretary of State for the Environment.
QC and Robert McCracken (instructed by Ginn & Co, of Cambridge) appeared
for the second appellants, Milton Park Investments Ltd.
Carnwath QC and Christopher Lewsley (instructed by Nabarro Nathanson) appeared
for the respondents, Cambridge City Council.
following judgments were delivered.
GLIDEWELL
LJ: This appeal raises two questions, the first of
which is of general application. They are: (1) Do works for the demolition of a
building invariably constitute ‘development’ within the meaning of the Town and
Country Planning Act 1990 and its predecessors?
(2) If not, do the particular works of demolition in this case
constitute such development?
On October 3
1989 Cambridge City Council (‘Cambridge’) served two enforcement notices on
Milton Park Investments Ltd (‘Milton Park’) relating to a pair of semi-detached
houses, 21 and 23 Milton Road, Cambridge. Milton Park appealed to the Secretary
of State for the Environment against the enforcement notices. The Secretary of
State delegated the decision on that appeal to one of his inspectors, Mr Peter
Norman MA MRTPI. The appeal was conducted by written representations, together
with a site visit by Mr Norman.
By letter
dated May 15 1990 the inspector allowed Milton Park’s appeals and quashed both
enforcement notices.
On June 12
1990 Cambridge appealed to the High Court against the inspector’s decision on a
point of law under section 246 of the Town and Country Planning Act 1971 (now
section 289 of the Town and Country Planning Act 1990). On January 11 1991 Mr
David Widdicombe QC, sitting as a deputy judge of the Queen’s Bench Division,
gave judgment allowing the appeal by Cambridge: [1991] 1 PLR 109. He remitted
the matter to the Secretary of State with his opinion.
The Secretary
of State and Milton Park now appeal to this court against Mr Widdicombe’s
decision.
History
The factual
background to this matter is significant. Milton Park are developers. Early in
1989 they were engaged in the development of offices known as the Westbrook
Centre, Milton Road, Cambridge. Milton Park purchased the two semi-detached
houses, 21 and 23 Milton Road, with the intention of demolishing them, and on
the cleared sites thereafter ‘providing additional car parking, enhancing the
visual aspect of the development by high quality landscaping and improving’
visibility
the construction of the offices was in progress, Milton Park used the two
houses as site offices, with temporary planning permission for that use. When
that temporary permission came to an end, Milton Park intended to demolish the
houses over the Easter weekend, March 24-27 1989. They informed the chief
planning officer of Cambridge of their intention by telephone on March 23 1989.
He reminded the company that they had not complied with their obligation to
give six weeks’ notice of intention to demolish under the Building Act 1984.
Milton Park therefore instructed their demolition contractor to carry out only
a limited amount of demolition over the weekend, including the removal of
damaged slates from the roofs and the removal of certain equipment from the
interior so as to make the houses unattractive to squatters.
Shortly
afterwards, Cambridge sought and were granted an interim injunction prohibiting
Milton Park from carrying out any further work of demolition to the two houses.
However, this order was set aside on the inter partes application.
Cambridge
then, early in May 1989, served a building preservation notice on Milton Park
in respect of the houses. Milton Park sought leave to challenge this in the
High Court by way of judicial review, but Cambridge then agreed to withdraw the
preservation notice.
The
enforcement notices were served on October 3 1989. It is noticeable that they
were not accompanied by stop notices. Nevertheless, we were told that no
further work of demolition has taken place, and the houses are in the same
condition as they were at the end of March 1989.
The
enforcement notices
The notices
were in identical terms. The breach of planning control alleged in each was
‘the demolition of part of the premises involving the removal of all slates or
roof tiles, battens, and other materials from the main roofs of the premises .
. . and the making of holes in the ceilings of some of the first floor rooms in
the premises without having previously obtained the benefit of planning
permission’. The notices required Milton Park to cease the alleged breach of
planning control, and to replace the slates or roof tiles on the roofs of the
premises so as to match those existing, and to make good and repair the
ceilings. The period for compliance with the notices was six months.
Milton Park
appealed to the Secretary of State for the Environment on the grounds set out
in section 88(2) (a) (b) and (c) of the 1971 Act (1990
Act, section 173). The argument on the appeal, and at all stages up to this
court, has centred on ground (b), namely that the matters alleged as a
breach of planning control do not constitute or involve development.
The
relevant statutory provision
Since the
planning legislation of 1990 is now in force, I shall give the section numbers
in this legislation as well as those in the 1971 Act, under which provisions
this appeal has been, and is being, conducted.
Section 22(1)
of the 1971 Act contains the classic definition of development, which until now
has endured since the coming into force
case, this is:
‘development’
. . . means the carrying out of building, engineering, mining or other
operations in, on, over or under land . . .
(1990 Act,
section 55(1))
By section 290
(1) of the 1971 Act (1990 Act, section 336(1)) various words and phrases used
in that definition of development are further defined. The relevant definitions
are:
‘building
operations’ includes rebuilding operations, structural alterations of or
additions to buildings, and other operations normally undertaken by a person
carrying on business as a builder;
‘building’ . .
. includes any structure or erection, and any part of a building, as so defined
. . .;
‘engineering
operations’ includes the formation or laying out of means of access to
highways;
It will be
seen that in none of these definitions do the words ‘demolition’ or ‘demolish’
appear. The only reference in the 1971 Act to demolition was in relation to the
demolition of buildings of architectural or historical importance (section 75).
To this was added by amendment in 1977 the demolition of buildings in
conservation areas (section 277(A)). These provisions are now to be found in
sections 55 and 74 to 76 of the Planning (Listed Buildings and Conservation
Areas) Act 1990.
However,
Parliament has now legislated in the Planning and Compensation Act 1991 to
amend the definition of ‘building operations’ where that expression is used in
the definition of development. The 1991 Act adds, by section 13, a new
subsection to section 55 of the 1990 Act which provides:
(1A) For the purposes of this Act ‘building
operations’ includes —
(a) demolition of buildings;
(b) rebuilding;
(c) structural alterations of or additions to
buildings; and
(d) other operations normally undertaken by a
person carrying on business as a builder.
This is
subject to a power given to the Secretary of State by the same section to
exclude any description of building from the scope of the section. The 1991 Act
has received the Royal Assent, but section 13 is not yet in force1.
1Editor’s note: It was brought into force on July 27 1992 by the
Planning and Compensation Act 1991 (Commencement No 9 and Transitional
Provision) Order 1992 (SI 1992 No 1279).
Representations
by Cambridge
The argument
advanced in written representations by Cambridge to the inspector was that in
its decision in Coleshill & District Investment Co
House of Lords had decided that the partial demolition of a permanent building
was, or at least could be, ‘development’ within the meaning of the Acts. Thus
the partial demolition of these two houses was development for which planning
permission was required.
The
inspector’s decision
In his
decision letter the inspector considered whether he should accept Cambridge’s
argument that the demolition at the two houses was only partial, or the
argument for Milton Park that they intended to demolish the houses completely
and had only ceased the demolition works because they had been required to do
so by the various steps taken by Cambridge. In para 7 of his decision letter
the inspector said of a letter dated May 15 1989 written by Milton Park’s
parent company to the Secretary of State that:
[It] clearly
indicates that the appeal properties were acquired by your clients with a view
to providing additional car parking for the adjoining office development,
enhancing its visual aspect by landscaping, and improving highway safety for
vehicles using the access road. The total demolition of the properties is
implicit in those proposals, and I am satisfied that that was your clients’
intention.
This was a
clear finding of fact rejecting the argument for Cambridge. Since no other
issue had been canvassed before the inspector, he might have allowed the appeal
and quashed the enforcement notices on this finding alone. But he did not do
so. He continued by considering whether, as a matter of law, the total
demolition of the two houses could or did constitute development.
In the
following paragraphs of his decision letter the inspector said:
8. In the
light of the Coleshill case I accept that demolition — whether total or
partial — is capable of being development. The Courts had previously decided
that total demolition and clearance of a site may constitute works for the
erection of a building, and therefore development (London County Council
v Marks & Spencer Ltd (1953) 3 P&CR 409 HL); however your
clients propose to use the sites of the appeal properties for car parking,
landscaping and highway improvements rather than for the erection of any
building, and it therefore seems to me that that judgment does not lend support
to the Council’s case. The facts in Coleshill, on which the authority
seek to rely, were highly unusual in that what was to be demolished, namely
blast walls and embankments erected as external parts of an explosives store,
were not buildings in the ordinary sense of the word; moreover, as the Council
emphasise, that case was concerned with partial demolition only.
9. In Milton
Road the operations undertaken so far have been the first stages in the
projected total demolition of the houses, not their partial demolition with a
view to alteration, and in my view the facts are comparable to those in Iddenden
rather than in Coleshill. The projected total demolition was not to
form part of preparatory works for the erection of a building, and nor has it
been nor would it be of such scale or complexity as to constitute an
engineering operation in its own right. In the light of the foregoing, and
having taken into account all the points made in the
development requiring planning permission. The appeals will therefore succeed
on ground (b), and no other aspect of the matter falls to be considered.
He therefore
quashed both enforcement notices.
I shall
comment later on paras 8 and 9 of this letter. I note, however, at present that
in para 9 is another finding of fact, that the ‘projected total demolition . .
. [would not] constitute an engineering operation in its own right’. Since
Cambridge were only entitled to appeal against the inspector’s decision on a
question of law, they could thus not challenge the findings that the demolition
was intended to be total and that it did not constitute an engineering
operation.
The appeal
to the High Court
The notice of
motion pleaded that the inspector erred in law in two respects: (1) In failing
to consider whether the demolition of the houses may have constituted works
for, or have been coupled with, the laying out and formation of the car parking
spaces and the landscaping and highway improvements intended, or the change of
use of the land which these would entail, and thus constitute development
within section 22 of the 1971 Act; (2) In saying in para 9 of his decision that
‘the facts are comparable to those in Iddenden rather than in Coleshill‘.
The
judge’s decision
Mr Widdicombe
QC most helpfully summarised his conclusions in a short passage of his
judgment, [[1991] 1 PLR 109 at p 119H]. I shall have to consider certain parts
of the reasoning in his judgment in more detail later, but at present it
suffices to set out his summary, which was as follows:
(1) The inspector erred in law in his
understanding of the Marks & Spencer case, but the error is not
material because the Marks & Spencer case is of little relevance in
any event.
(2) The inspector erred in law in his
understanding of the Iddenden case, and the error is material because he
failed to consider whether the demolition of the houses was a building
operation.
(3) The demolition of these houses is not
‘development’ merely because it is part of larger proposals for the development
of the site.
(4) The demolition of these houses is
‘development’, namely ‘a building operation’, being an ‘other operation
normally undertaken by a person carrying on business as a builder’.
It is for this
reason that the judge allowed the appeal against the inspector’s decision and
remitted the matter to the Secretary of State. Having reached this decision, he
did not find it necessary to express a view on the question whether the
demolition of the houses was an ‘other operation in, on, over or under land’.
The
relevant authorities
Before I come
to consider the judge’s judgment in more detail, and
to the three previous decisions which are relevant to our consideration of the
issues on this appeal.
The first in
point of time was London County Council v Marks & Spencer
Ltd [1952] Ch 549, [1953] AC 535. Shortly before 1939 permission was
granted for the redevelopment of a site in Marylebone under the Town and
Country Planning Act 1932. The old buildings on the site were demolished in
1939, but the erection of the new buildings was prevented by the outbreak of
war. After the end of the war, when the 1947 Act was in force, the question
arose whether a new planning permission for the erection of the proposed
building was necessary. This depended on section 78(1) of the 1947 Act, under
which planning permission was deemed to be granted where ‘any works for the
erection or alteration of a building have been begun but not completed before
the appointed day’. The question at issue was whether the works for the
demolition of the building were within the phrase ‘works for the erection of a
building’. The Court of Appeal by a majority held that they were and the House
of Lords upheld this decision unanimously. We are not concerned with the phrase
‘works for the erection of a building’. In his judgment in the Court of Appeal,
with which all the members of the House of Lords expressly agreed, Jenkins LJ
referred to the phrase ‘works for the erection or alteration of a building’ as
including ‘in terms, operations which are not in themselves building
operations’ ([1952] Ch 549 at p 563). The phrase under consideration in the Marks
& Spencer case was thus clearly wider than the phrase with which we
are concerned in the present case, namely ‘building operations’.
The decision
of the House of Lords in Coleshill & District Investment Co Ltd
v Minister of Housing and Local Government [1969] 1 WLR 746 concerned a
group of buildings constructed during the 1939-1945 war as an ammunition depot.
It consisted of four magazines and two explosive stores, around each of which
were erected about 4 ft from the walls of the buildings themselves blast walls
about 9 ft high. On the outside of each of the blast walls was a sloping
embankment extending from the top of the wall to 8 or 10 ft from its base, and
covered with grass. In 1962 the minister decided that use of the buildings for
commercial storage would not constitute development, and they were so used. In
1966 the owners decided to remove the embankments and blast walls. The
embankments were removed by using a mechanical excavator. Before the blast
walls were demolished, the local planning authority served an enforcement
notice alleging that the removal of the embankments constituted development
without planning permission. The owners appealed to the minister and also asked
for a determination whether the removal of the blast walls would constitute development
requiring permission. After an inquiry, the minister concluded that the blast
walls and the embankments were an integral part of each of the buildings and
that the removal of the embankments was an engineering operation within the
definition of ‘development’ in section 12(1) of the Town and Country Planning
Act 1962 (which was identical with the definition in the 1990 Act). He also
held that the removal of the blast walls would constitute an alteration of the
buildings, materially affecting
against these decisions the divisional court allowed the appeal, but the Court
of Appeal restored the minister’s decisions. The decision of the Court of
Appeal was upheld in the House of Lords. Put shortly, the conclusion was that
it was open to the minister as a matter of law to conclude as he did, and that
his decisions that the blast walls were an integral part of each of the
buildings and that the removal of the embankments was an engineering operation
was in each case a question of fact for him.
Lord Morris of
Borth-y-Gest said in his speech at p 755F:
The
definition of ‘development’ is set out in section 12(1) and section 221 of the
Act. Subject to certain exceptions, and leaving aside the making of any
material change in the use of any buildings or other land, ‘development’ means
the carrying out of building operations (which include rebuilding operations,
structural alterations of or additions to buildings, and other operations normally
undertaken by a person carrying on business as a builder) or of engineering
operations (which include the formation or laying out of means of access to
highways) or of mining operations or of other operations, in, on, over or under
land . . . Wide though the definition is, it does not include any and every
operation on land. In section 43 is set out the procedure to be followed when
it is desired to have a determination whether planning permission is required.
Any person who proposes to carry out ‘any operations’ on land may apply for a
ruling. Had development meant ‘any’ operations in, on, over or under land there
would not have been included in section 12(1) the words ‘building, engineering,
mining or other.’ I think that the word
‘other’ must denote operations which could be spoken of in the context of or in
association with or as being in the nature of or as having relation to building
operations or engineering operations or mining operations.
Lord Upjohn
said at p 761F:
The main
submission of the appellants pushed to its ultimate length was that no act of
demolition ‘per se’ or ‘simpliciter’ (whatever those qualifications mean — I
think they were intended to mean without a view to redevelopment), whether of a
complete building or of a part of a building, could in law constitute
development for the purposes of section 12. I cannot understand this argument
pushed so far. Counsel for the appellants rightly pressed your Lordships with
the view that in the Act the word ‘demolition’ was only used in relation to
cases where corrective action was required after service of enforcement notices
or in relation to specially ‘listed’ houses of historic interest which may not
be demolished without a special order. But there is nothing in section 12 or
elsewhere which makes it plain that demolition per se or simpliciter is
necessarily excluded from the very wide words of section 12(1) if otherwise the
relevant operation fits within those words as a plain matter of the use of the
English language. In fact there is nothing to exclude demolition. In this case
the Minister has decided that this demolition is an engineering operation and
so within the section. I do not understand how, if this demolition be properly
so described, the fact that it is only demolition per se takes it out of that
section.
Lord
Wilberforce said at pp 764H-765H:
Finally there
is the appellants’ suggestion that the relevant operations must at least be of
a constructive character, leading to an identifiable and positive result. I
think that this is near the heart of the matter, and that there is an important
element of truth in the argument. I would accept, and think it important to
emphasise, that the planning legislation should be approached with a
disposition not to bring within its ambit, unless specific words so require,
operations in relation to land which do not produce results of this kind, that
is to say, results (I deal only with operations, not with use) of a positive,
constructive, identifiable character. In my opinion, the appellants succeed in
showing that neither the development of the legislation, nor the successive
descriptions of ‘development,’ nor the policy of control and, while it lasted,
of charge on development, nor common sense or common expectation, require or
suggest that the mere removal of a structure, or a building, or of a part of a
building should be subject to the code. And I think that they derive important
support for this argument from the Minister’s circular No. 67 of February 15,
1949, in which he stated that he was
‘advised that the demolition of a
building does not of itself involve development, although, of course, it may
form part of a building operation, or lead to the making of a material change
in the use of the land upon which it stood.’
The advice
referred to may not have been quite correct (I return to this point) but in
giving this information to planning authorities, the Minister was undoubtedly
reflecting a common sense and accepted opinion as to the general nature of
development. I accept of course that, as an interpretation of the Act of 1947,
under which it was issued, the circular had no legal status: but it acquired
vitality and strength when, through the years, it passed, as it certainly did,
into planning practice and text books, was acted on, as it certainly was, in
planning decisions, and when the Act of 1962 (and I may add the Town and
Country Planning Act of 1968) maintained the same definition of ‘development’
under which it was issued.
So far, for
the appellants, so good: they establish, in my opinion, this general approach
to the construction of ‘development’ and I think that it assists them in the
limitation of the words ‘other operations.’
But, as I said above, this can only be so unless specific words so
require. The governing statutory words remain those of sections 12 and 221, and
where these fairly apply, they must prevail. They cannot be prevented from
applying to a particular operation, which comes within them, by the mere fact
that, in addition, the descriptive label ‘demolition’ would fit that operation.
The
Minister’s circular to be fully accurate, should then have said not that it
(the demolition of a building) may form part of a building operation, but that,
what might be described as demolition may fall within one of the specific types
of operation described in section 12(1) and rank as development accordingly.
The Minister
has held here that the removal of the embankments was an engineering operation,
and that removal of the walls would be a building operation. Neither of these
conclusions appears to me to have been inevitable: he might have held that both
or either would be demolition and that neither the one fell under ‘engineering’
nor the other under ‘building.’ But both
were marginal decisions given in relation to a very special case, and I think
were open to him to make as he did.
Lord Pearson
said at p 770A:
Thirdly,
there is the removal of the embankments. I would have been inclined to regard
this also as a structural alteration of the magazine treated as a single
building, structure or erection, and on that basis there would be a building
operation within the definition and it would be development requiring planning
permission. There is also the possibility that the removal of the embankments
might come within ‘other operations normally undertaken by a person carrying on
business as a builder,’ but without expert knowledge or expert evidence I do
not feel able to form a view on this possibility. The Minister, however, did
not decide on either of these grounds. He decided on the ground that the
removal of the embankments was an ‘engineering operation’ . . . In my opinion,
there was evidence on which the Minister could reasonably accept the view of
the local authority and the inspector that the removal of the embankments
constituted an engineering operation and, therefore, was development requiring
planning permission.
The argument
for the appellants was mainly based on the proposition that demolition, or
demolition in or by itself, or demolition per se, does not constitute development.
I think there is in this proposition some truth but only a limited amount of
truth. On the one hand, there is in section 12 and in the relevant definitions
in section 221 no mention of or reference to demolition or removal or any such
operation. Therefore, an operation does not qualify as development by virtue of
being a demolition or removal operation. It is not right to say ‘This is a
demolition or removal operation: therefore, it is development.’ On the other hand, there are not in section
12 or in the relevant definitions in section 221 any words excluding operations
from being development if they are demolition or removal operations. An
operation is not disqualified for being development because it is a demolition
or removal operation. It is not right to say ‘This is a demolition or removal
operation: therefore, it cannot be development.’ Notwithstanding that an operation is a
demolition or removal operation, one still has to see whether it comes within
the scope of development as defined in section 12 assisted by section 221. It
may be within the definition of ‘building operations,’ e.g., because it
constitutes a structural alteration of a building or because it is such an
operation as to be normally undertaken by a person carrying on business as a
builder. It may be an engineering operation. Whether it is or not any of those
things depends on the facts of the particular case.
In Iddenden
v Secretary of State for the Environment [1972] 1 WLR 1433, a decision
of the Court of Appeal, the material facts were that the applicants had bought
land on which there were some nissen huts and a lean-to structure in which they
manufactured small metal components. They applied for permission to demolish
existing buildings and to erect new ones. Permission was refused but despite
that the owners demolished the nissen huts and the lean-to structure and
erected three prefabricated buildings, in which they continued to manufacture
the metal components. The local planning authority served an enforcement notice
requiring the applicants to demolish the unauthorised buildings and discontinue
the unauthorised use of them. The owners appealed to the Secretary of State,
who upheld the enforcement notice. The owners then further appealed to the
divisional court, contending that the enforcement notice was defective in not
requiring them after the demolition of the new buildings
Court of Appeal dismissed the appeal.
The argument
for the appellants was that the breach of planning control consisted in both
the demolition of the original buildings and the erection of the new ones, as
well as their use. The issue was whether the demolition was part of the breach
of planning control.
The basis of
the judgments dismissing the appeal in this court was section 15(5) of the Town
and Country Planning Act 1968 (now section 173 of the 1990 Act) which required
that the enforcement notice
shall specify
—
(a) the matters alleged to constitute a breach
of planning control;
(b) the steps required by the authority to be
taken in order to remedy the breach, that is to say steps for the purpose of
restoring the land to its condition before the development took place . . .
It was argued
that this wording obliged the local planning authority to insert in the
enforcement notice a requirement not only that the new buildings must be pulled
down but also that the old buildings should be restored.
In his
judgment, Lord Denning MR, with whom Buckley LJ and Orr LJ agreed, said at p
1439B-E:
The words of
the section are ‘to remedy the breach.’
That means the breach of planning control. What was the breach in this
case? If it was the pulling down of the
old nissen huts or the old workshop, then it may be that in order to remedy the
breach they would have to be restored. But I do not think their demolition was
a breach of planning control. Whilst some demolition operations may be
development — see Coleshill and District Investment Co Ltd v Minister
of Housing and Local Government [1968] 1 WLR 600, [1969] 1 WLR 746 — the
demolition of buildings such as these was not development. Mr Iddenden did not
need planning permission to pull them down. No doubt the pulling down of the
old and the erection of the new was all one combined operation by the workmen.
But in planning law they are different operations. Mr. Iddenden only required
planning permission for his new buildings and their user. The only breach by
him of planning control was the unauthorised erection of the new buildings, the
concrete base, and the user of the factory. The enforcement notice required him
to remedy that breach. It told him the steps he had to take. It was perfectly
good.
Submissions
Mr Carnwath QC
for Cambridge submits that the inspector was required to consider whether the
works of demolition constituted a building, engineering or other operation. His
finding of fact that the works of demolition to the houses which had been
carried out when the enforcement notices were served were part of a total
demolition of the houses, and were thus not a partial demolition forming part
of a structural alteration to the buildings, and that the works were not an
engineering operation, are not open to challenge and are accepted. However the
inspector did not consider, as he should have done, the questions whether the
works of demolition which had been carried out
carrying on business as a builder’, and thus within the definition of ‘building
operations’ within section 336 of the 1990 Act; or (ii) an ‘other operation . .
. on . . . land’ within the meaning of the definition of development in section
55(1) of the 1990 Act.
As to the
first contention, the learned judge was correct and was entitled to come to the
conclusion to which he came. Alternatively, if he was not entitled to conclude
that the work of demolition was an ‘operation normally undertaken by a person
carrying on business as a builder’ without evidence to that effect, the matter
should be remitted to the Secretary of State to be further considered. As to
the second point, any operation on land which has a permanent physical effect
on the land is development. In order to determine whether works of demolition
are within the meaning of ‘development’, as being ‘other operations’, it is
necessary to ascertain the purpose for which the demolition is being carried
out. If it is carried out in preparation for works which will have a permanent
physical effect on the land, then the demolition itself constitutes development.
In this case since the demolition of the houses was intended to be followed by
the laying out of the site for car parking and improvement of access, together
with some landscaping, the demolition constituted development.
It suffices to
say that Mr Moriarty QC for the Secretary of State and Lord Silsoe QC for
Milton Park controvert these submissions.
In my view,
the decisions in London County Council v Marks & Spencer;
Coleshill v Minister of Housing and Local Government and Iddenden v Secretary
of State for the Environment establish the following propositions:
(a) Works for the demolition
of a building may, but do not necessarily or inevitably, constitute
‘development’ within the meaning of section 55 of the 1990 Act.
(b) Such works constitute
‘development’ if, but only if, they are properly to be regarded as either (i)
‘building operations’ as defined in section 336(1) of the Act; or (ii)
‘engineering operations’; or (iii) ‘other operations . . . on . . . land’.
(c) Demolition works may be
building operations if they are a part of ‘structural alterations of . . .
buildings’, as in Coleshill. In such a case the demolition will
inevitably be partial only, since if it were total there would be no building
left to be altered.
(d) Demolition works of a
particular type or scale may be ‘operations normally undertaken by a person
carrying on business as a builder’.
(e) Demolition works of
particular structures, eg the embankments in Coleshill, may be
‘engineering operations’.
(f) Whether works of
demolition are within any of these categories of development is a question of
fact for the decision maker — the Secretary of State or, as in the present
case, the inspector to whom he has delegated the decision.
(g) The definition of
development does not comprehend every operation on land. This is made clear by
the words in section 64(1) of the 1990 Act:
64.–(1) If any person who proposes to carry out any operations on land
. . .
(a) Wishes to have it determined whether the
carrying out of those operations . . . would constitute or involve development
of land . . .
Thus ‘other operations . . . on . . . land’ in the definition in
section 55(1) does not mean all other operations (per Lord Morris
in Coleshill at p 755H).
(h) ‘Other operations’ in
that definition are operations which, while not of one genus comprising also
building and engineering operations, nevertheless ‘must at least be of a
constructive character, leading to an identifiable and positive result’, or be
‘similar to building operations or to engineering operations’, (per Lord
Wilberforce at p 764H and Lord Pearson at p 771E in Coleshill).
(i) Whether particular works
of demolition constitute development within the statutory definition must be
decided in relation to those works, and not to other projected works to which
the demolition is a preliminary. ‘In planning law they are different
operations’: (per Lord Denning MR in Iddenden at p 1439D. The Marks
& Spencer decision does not controvert this proposition. In that
case the works of demolition were held to be ‘works for the erection or
alteration of a building’ which, as Jenkins LJ made clear, is a phrase with a
wider meaning than ‘building operations’, and apt to include preliminary works
of demolition.
Conclusion
The judge
described the question whether the demolition of the houses was development
within the definition in the Act as ‘a question which like a ghost has haunted
planning law for many years’. He said [[1991] 1 PLR 109 at p 119A]:
The time has
now come when the ghost must be laid to rest.
If that is an
accurate description of the task in which we are engaged, it is ironic that we
should be charged with it at the very moment when Parliament, in the 1991 Act,
has breathed new life into the phantom. However, we must construe the law as it
is at present, for which purpose I turn to apply the principles I have tried to
formulate to the present appeal.
It is accepted
by Mr Carnwath, for Cambridge, that the inspector’s findings of fact lead to
the conclusion that the works of demolition carried out at 21 and 23 Milton
Road were neither ‘Structural alterations of buildings’ nor ‘engineering
operations’.
Was the judge
right to find that they were ‘operations normally undertaken by a person
carrying on business as a builder’? I
have already said that this was a question of fact for the inspector. The judge
said [[1991] 1 PLR 109 at p 119C–D]:
I take the
view that the demolition of these houses is a ‘building operation’, that is an
‘other operation normally undertaken by a person carrying on business as a
builder’ . . . the pulling down of ordinary
builder’s business, whether he goes on to develop the site afterwards or not.
Mr Moriarty
and Lord Silsoe argue that the judge was not entitled to make this finding of
fact. It was a matter upon which the inspector had made no finding of fact, and
about which there was no evidence before him or the judge. There was thus no
material upon which the judge could find as he did.
I agree with
these submissions. It is clear that this issue was not canvassed before the
inspector — there is no word of it in the written representations. If he had
been asked to consider it, he might have said that he required evidence of the
normal scope of a builder’s business, or he might have been able to make a
decision from his own expert knowledge. In the absence, however, of such a
finding by the inspector and of evidence, there was no material upon which the
judge could reach his conclusion. Despite his undoubted expertise, he was not
sitting as a tribunal finding facts.
Mr Carnwath,
however, argues that if we reach this conclusion, we should also hold that this
is a matter which the inspector was obliged to consider, that he was thus in
error in failing to do so, and that (subject to his argument on other issues)
we should remit the matter to the Secretary of State for him to make the
necessary findings. He draws our attention to a passage in the judgment of
Watkins LJ in Prest v Secretary of State for Wales (1982) 81 LGR
193 on the duty of the Secretary of State or his inspector.
I accept that,
when determining an appeal under the planning legislation, an inspector has a
wider task than that of a judge determining a civil action. The inspector must
consider what appear to him to be ‘material considerations’, whether they have
been canvassed by the parties or not. But there are limits to this duty. The
inspector is under no obligation to cast about, trying to think of every issue
which might be relevant. The issues raised by the parties in their
representations are a good indication of the matters they consider relevant.
Thus I reject the submission that the inspector here should, of his own
volition, have considered and made a finding about the normal scope of a
builder’s business.
It follows
that, in my view, the judge was wrong to allow the appeal to him on the basis
he adopted. It is therefore necessary for us to consider the issue on which he
found it unnecessary to reach a conclusion, namely whether in this case the
works of demolition were an ‘other operation . . . on . . . land’. Applying the
principles I have sought to set out at (g), (h) and (i) above, I conclude that
demolition of itself is not an ‘other operation’ within the meaning of section
55(1). The fact that when the demolition is complete it will or may be followed
by works or a change of use which will constitute development within the
statutory definition does not alter this conclusion. If I understand his judgment
correctly, the judge thought that the principle in London County Council
v Marks & Spencer that demolition of a building intended to
be followed by the construction of a new building amounted to ‘works for the
erection of a building’, applied equally to demolition intended to be followed
by development such as the laying out of a car park. If the judge did mean
this, I respectfully agree [sic] with him. As Jenkins LJ made clear in his
judgment in London County Council v Marks & Spencer in
the passage to which I have referred earlier, the phrase ‘works for the
erection of a building’ has a wider meaning than the phrase ‘building
operations’. The wider phrase, as indeed Mr Carnwath argues, has no relevance
in the present case. I therefore conclude that the demolition works at 21 and
23 Milton Road were not an ‘other operation’ within section 55(1).
For
completeness, I should say that when at para 9 of his decision letter the
inspector said that ‘the facts are comparable to those in Iddenden
rather than in Coleshill’, he was in my view doing no more than
contrasting the relevance of total demolition with that of partial demolition.
I see no error there.
For these
reasons I would allow this appeal and restore the order made by the inspector,
quashing both enforcement notices.
BELDAM LJ: I agree with Glidewell LJ’s judgment.
NOLAN LJ: I also agree with the judgment of Glidewell LJ and wish to add some
words of my own solely upon the question of statutory construction.
An enforcement
notice may be served ‘where it appears to the local planning authority that
there has been a breach of planning control’; and a breach of planning control
occurs if, inter alia, ‘development has been carried out . . . without
the grant of planning permission’: see section 87(1) and (2) of the Town and
Country Planning Act 1971, now replaced by section 172 of the 1990 Act.
The
enforcement notices served upon Milton Park in the present case alleged that in
the case of each of the two houses concerned there had been a breach of
planning control consisting of ‘the demolition of part of the premises
involving the removal of all slates or roof tiles, battens and other materials
from the main roofs of the premises, the removal of all slates or roof tiles
and roof timbers from the roof of the single storey rear extension to the
premises, and the making of holes in the ceilings of some of the first floor
rooms in the premises without having previously obtained the benefit of
planning permission’. The sole question is whether the works of demolition thus
described amounted in the circumstances to development as defined by the Act.
Since an enforcement notice is penal in nature, the statutory definition must
be viewed strictly.
In Coleshill
& District Investment Co Ltd v Minister of Housing and Local
Government [1969] 1 WLR 746 Lord Morris paraphrased and summarised the
statutory definition in these terms, at p 755F:
Subject to
certain exceptions, and leaving aside the making of any material change in the
use of any buildings or other land, ‘development’ means the carrying out of
building operations (which include rebuilding operations, structural
alterations of or additions to buildings, and other operations
engineering operations (which include the formation or laying out of means of
access to highways) or of mining operations or of other operations, in, on,
over or under land.
Thus the
definition does not expressly refer to demolition but, as Coleshill
shows, it will include demolition if, in the circumstances of the particular
case, the process of demolition involves or forms part of building,
engineering, or mining operations, or other operations in, on, over or under
land. Mr Carnwath QC, representing Cambridge, accepts that on the basis of the
inspector’s findings of fact the demolition works in the present case did not
involve or form part of a structural alteration to the buildings or an
engineering operation. He submitted, however, that the learned deputy judge was
entitled to regard them as building operations in the generic sense of
‘operations normally undertaken by a person carrying on business as a builder’.
Surprisingly,
to my mind, there appears to be no previous case in which this point has
arisen. I should have thought that there must be many occasions, of which the
present case may be one, where the works of demolition do not require the
employment of a demolition expert, but would normally be undertaken by
builders. Whether, even so, works of simple demolition which are not linked to
any of the specified types of operation in the definition can fall as a matter
of law within the scope of operations amounting to ‘development’ is another
matter, and one which I consider below. But at this point it does not arise because
there is no evidence that the works described in the enforcement notices in
fact were operations normally undertaken by builders. In the absence of such
evidence, I agree with Glidewell LJ that it was not open to the judge to reach
his own conclusion upon the matter.
Mr Carnwath
submitted alternatively that the works of demolition fell within the definition
as ‘other operations . . . on . . . land’. He referred to the judgment of Lord
Denning MR in Parkes v Secretary of State for the Environment
[1978] 1 WLR 1308 at p 1311E where Lord Denning spoke of the word ‘operations’
as comprising ‘activities which result in some physical alteration to the land,
which has some degree of permanence to the land itself’. If that remark were of
general application, then it would follow that almost any process of
demolition, whether total or partial, would constitute development within the
meaning of the Act. The Court of Appeal in Parkes, however, were only
concerned to decide whether the storing and sorting of scrap materials amounted
to an operation on land or a use of land (they decided that it was a use of
land) and Lord Denning was clearly not concerned to expand the meaning of the
statutory phrase ‘other operations’ on land in any general sense, still less to
consider whether it included demolition. It is, again, surprising to my mind
that this appears to be the first case in which the courts have had to decide
whether the statutory definition of ‘development’ includes purely destructive
works, such as those in the present case, which neither involve nor form part
of building, engineering or mining operations. In the absence of authority, I
would construe the definition as not including them, for the simple reason that
demolition must be a very common
planning control as a general rule I would have expected the 1971 Act to refer
to it expressly, as it did in the case of works of demolition on listed
buildings. In saying this I do not overlook the fact that the members of the
House of Lords in Coleshill derived no assistance from the use of the
word ‘demolition’ in the listed building provisions but the explanation for
that, as it seems to me, is simply that they were considering a different
question on different facts. There is, none the less, some support in the
speech of Lord Wilberforce for the proposition that works such as those in the
present case would not fall within the scope of the phrase ‘other operations’.
I refer to the passage already quoted by Glidewell LJ at [1969] 1 WLR 764H
where Lord Wilberforce said:
Finally there
is the appellants’ suggestion that the relevant operations must at least be of
a constructive character, leading to an identifiable and positive result. I
think that this is near the heart of the matter, and that there is an important
element of truth in the argument. I would accept, and think it important to
emphasise, that the planning legislation should be approached with a
disposition not to bring within its ambit, unless specific words so require,
operations in relation to land which do not produce results of this kind, that
is to say, results (I deal only with operations, not with use) of a positive,
constructive, identifiable character. In my opinion, the appellants succeed in
showing that neither the development of the legislation, nor the successive
descriptions of ‘development,’ nor the policy of control and, while it lasted,
of charge on development, nor common sense or common expectation, require or suggest
that the mere removal of a structure, or a building, or of a part of a building
should be subject to the code.
At p 765F Lord
Wilberforce, expressing himself with his usual precision, added by way of
comment upon a circular published by the minister:
The
Minister’s circular to be fully accurate, should then have said not that it
(the demolition of a building) may form part of a building operation, but that,
what might be described as demolition may fall within one of the specific types
of operation described in section 12(1) and rank as development accordingly.
Since the
works of demolition in the present case have no constructive element, and would
not fall within any of the specific types of operations described in the
definition, they cannot, in my judgment, constitute development.
Lord Silsoe
argued additionally that the inclusion of demolition in the new definition of
development which has been introduced by section 13 of the Planning and
Compensation Act 1991 is a further indication that it did not form part of the
previous definition. To my mind, however, this approach falls foul of the rule
(jealously guarded in the tax cases as a barrier against disguised
retrospective legislation) that save where express provision is made to that
effect, the provisions of a later Act cannot be used as an aid to the
construction of an earlier Act, even though the Acts are to be read as one,
save for the purpose of resolving
different meanings: see Kirkness v John Hudson & Co Ltd
[1955] AC 696. An example sometimes given of such an ambiguity is ’12 o’clock’,
which might equally mean midday or midnight. The pre-1990 meaning of
‘development’ may have been difficult to fathom, but it was not ambiguous.
I would not,
therefore, accept the argument based on the 1991 Act, but for the reasons
already given, as well as those given by Glidewell LJ, I would allow the
appeal.
Appeal
allowed; order for costs below set aside; second appellants to have their costs
against the first appellants below and of the appeal; no order for the first
appellants’ costs below, but costs of the appeal against the respondents.
Application for leave to appeal to the House of Lords refused.
