Derelict bungalow — Enforcement notice against reconstruction — Whether works of renovation and repair — Whether use as dwellinghouse abandoned — High Court upholding refusal of planning permission
The applicant acquired a derelict bungalow in 1990 at Childersgate, Sutton Street, St James, Lincolnshire. It had not been lived in for 30 years. Correspondence ensued between the local planning authority, South Holland District Council, and the applicant’s agents, concerning planning permission for the bungalow’s rebuilding or reconstruction. The applicant commenced works and an enforcement notice was issued against him. He had contended that the work was by way of renovation and repair, whereas in the opinion of the local planning authority, the work proposed amounted to a virtual rebuilding. They also contended that there had been virtual abandonment of the residential use of the site. The council stated that they could not allow the applicant to pre-empt the situation by carrying out permanent works before the question of planning permission had been resolved. On August 11 1992, the local authority reiterated that planning permission was required and “noted” that the applicant was relying upon the provision of the Town and Country Planning General Development Order 1988 (SI 1988 No 1813) relating to the “enlargement improvement and other alterations” of a dwellinghouse. That provision did not include rebuilding as was proposed in the instant case.
An appeal to the inspector against the enforcement notice was refused. He stated that the applicant relied on the exemption from the definition of development conferred by section 55(2)(a) of the Town and Country Planning Act 1990, viz that the works were for the maintenance or improvement of “any building” and did not affect its interior or its external appearance. He concluded that whether the works fell within the section was a matter of fact and degree and that the section fell short of granting unlimited rights to rebuild dilapidated buildings. In the present case, he found that the former bungalow was in the process of being reconstructed and so was beyond the section’s scope. He also found that the appeal failed on its planning merits.
Held The appeal was dismissed.
1. Section 55(2)(a) related to any building, derelict or otherwise. The decision was reached whether the works fell within that section and it was irrelevant to the decision under section 55 whether or not the building was a dwellinghouse.
2. It was argued before the court that the inspector should have considered the general development order, which gave automatic planning permission for “improvement, alteration or enlargement” of a dwellinghouse. He should therefore have decided whether the bungalow was still a dwellinghouse or that use had been abandoned.
3. The only reference to the GDO was in the letter of August 11. There had been a number of authorities on whether an inspector should deal with matters not urged on him at the appeal hearing.
4. While an inspector’s role was investigatory and the evidence should be examined regardless of where it came from, it was not for him to cast about to see whether an applicant’s case could be bettered by applying different considerations.
5. Moreover, even if he had determined the GDO point, he would have reached the same conclusion as he did under section 55, viz that the former bungalow was being reconstructed, in which case the GDO permission for improvements, etc did not bite.
David Smith (instructed by Gregory Rowcliffe & Milners, London agents for Mossop & Bowser, of Holbeach) appeared for the applicant; John Hobson (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; the local planning authority, South Holland District Council, did not appear and were not represented.
