Validity — Developers acquiring property with view to demolition and use of site — Limited works commenced without due notice — Planning authority requiring making good — Whether demolition works constituting “development” — Whether question of fact — Limitations on inspector’s duties — Order of inspector restored — Enforcement notices quashed
Milton Park Investments Ltd (Milton) was a property developer. In 1989 it was engaged in the development of offices known as The Westbrook Centre, Milton Road, Cambridge. Milton purchased two semi-detached houses, 21 and 23 Milton Road, with the intention of demolishing them and on the cleared site thereafter “providing additional car parking, enhancing the visual aspect of the development by high quality landscaping and improving visibility” for drivers of vehicles leaving the development. Milton commenced limited demolition work on the houses without having complied with its obligation to give six weeks’ notice of intention to demolish. In October 1989 the council served two enforcement notices on Milton relating to the houses and alleging breaches of planning control, ie “the demolition of part of the premises involving the removal of all slates or roof tiles, battens and other materials from the main roof of the premises and the making of holes in the ceilings of some of the rooms without the benefit of planning permission”. The notices required Milton to cease the alleged breaches and to replace the slates or roof tiles and make good and repair the ceilings. Milton appealed to the Secretary of State for the Environment against the notices. An inspector allowed the appeal and quashed the notices. The council appealed to the High Court under section 246 of the Town and Country Planning Act 1971 (now section 289 of the Town and Country Planning Act 1990) which allowed the appeal and remitted the matter to the Secretary of State. The Secretary of State and Milton appealed against that decision to the Court of Appeal.
Held The appeal was allowed.
The order made by the inspector was restored; both enforcement notices were quashed.
1. Works for the demolition of a building might, but did not necessarily or inevitably, constitute “development” within section 55 of the Town and Country Planning Act 1990. Such works constituted development only if they were properly to be regarded as “building operations” as defined in section 336(1), “engineering operations” or “other operations on land”.
2. Whether works of demolition were within any of those categories of development was a question of fact for the decision-maker — the Secretary of State or, as in the present case, the inspector to whom he had delegated the decision.
3. The definition of development did not comprehend every operation on land: see section 64(1). Thus “other operations on land” in section 55(1) did not mean all other 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”: see Coleshill & District Investment Co Ltd v Minister of Housing and Local Government [1969] 1 WLR 476.
4. Whether particular works of demolition constituted development within the statutory definition must be decided in relation to those works and not to other projected works to which the demolition was a preliminary.
5. In the present case the inspector’s findings of fact led to the conclusion that the works of demolition carried out were neither “structural alterations of buildings” nor “engineering operations”.
6. The judge was not entitled to find as a fact that they were “operations normally undertaken by a person carrying on business as a builder”. It was a matter upon which the inspector made no finding of fact and about which there was no evidence before him or the judge. Thus there was no material on which the judge could find as he did.
7. When determining an appeal under the planning legislation, an inspector had a wider task than that of a judge determining a civil action. The inspector had to consider what appeared to him to be “material considerations” whether canvassed by the parties or not. But there were limits to that duty. The inspector was under no obligation to cast about trying to think of every issue which might be relevant. The issues raised by the parties were a good indication of the matters they considered relevant. Therefore, there was no reason why the inspector should have considered and made a finding about the normal scope of a builder’s business.
8. Demolition of itself was not an “other operation” within section 55(1). The fact that when the demolition was complete it would or might be followed by works or a change of use which would constitute development within the statutory definition did not alter that conclusion.
9. Since the works of demolition in the present case had not a constructive element and would not fall within any of the specific types or operations described in the definition, they could not constitute development.
Lord Silsoe QC and Robert McCracken (instructed by Ginn & Co, of Cambridge) appeared for Milton Park; Gerald Moriarty QC and Michael Kent (instructed by the Treasury Solicitor) appeared for the Secretary of State; and Robert Carnwath QC and Christopher Lewsley (instructed by the solicitor to the council) appeared for Cambridge City Council.
