Claimant removing chimney stack and breast from listed building and replacing stack – Local planning authority refusing listed building consent and issuing listed building enforcement notice – Notice requiring restoration of building to former state – Claimant appealing – Inspector dismissing appeal – Whether inspector failing to take relevant considerations into account and taking irrelevant considerations into account – Appeal dismissed
The claimant carried out unauthorised works to Thorpe Underwood Hall, a Grade II listed building. The works involved the removal and replacement of a chimney stack and the removal of a chimney breast containing two bricked-up fireplaces at second-floor attic level. The claimant then applied for listed building consent.
Consent was refused and the local authority issued a listed building enforcement notice, requiring the claimant to restore the building to its former state. This involved the reinstatement of the former chimney stack and breast. The claimant appealed.
In his decision letter, the inspector referred to the guidance in PPG 15, and set out, as the main issues: (i) the effect of the works upon the special architectural character of the building; and (ii) whether listed building consent would have been granted for works “had it been sought before they were carried out, while having regard to any subsequent matters which may be relevant”. He concluded that the special architectural character of the hall had been seriously damaged, and that consent would not have been granted had it been sought.
Going on to consider the potential functionality of the replacement chimney stack, the inspector recognised that the problem was not its appearance, but the fact that, if the flues were constructed to comply with current building regulations, it could only serve three fires, whereas the original stack had served five. The inspector concluded that the enforcement notice did no more than was necessary for restoring the building to its former state. He therefore recommended that listed building consent be refused and that the enforcement notice be confirmed. The Secretary of State agreed with the inspector’s conclusions and dismissed the appeal.
The claimant appealed against the Secretary of State’s decision and sought to quash the enforcement notice. It contended, inter alia, that it was impossible for it to know what had to be done to comply with the enforcement notice, and that the inspector had failed to consider that matter. It was submitted that the inspector had failed to take account of the local planning authority’s decision to under-enforce: namely, its decision not to require the load-bearing walls to be replaced and to allow the steel beams to remain in place. That was, in the claimant’s submission, a “subsequent matter” that was crucial and should have been considered. It was further contended that the inspector had failed to consider whether the need for any works to comply with building regulations entailed that improvement, rather than restoration, was being required.
Held: The appeal was dismissed.
It was plain what the enforcement notice required to be done. The inspector had found it to be an exercise in restoration. The authority’s decision to under-enforce was on his mind, and he was aware of what he was dealing with. The inspector did not fail to take any relevant matters into account, nor did he take irrelevant matters into consideration.
Joseph Harper QC (instructed by Hart & Co, of Wetherby) appeared for the claimant; Timothy Corner (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendant local authority did not appear and were not represented.
Sarah Addenbrooke, barrister
