A planning condition requiring the authority’s previous written approval of the ‘type and treatment’ of the materials to be used by a developer does not operate to allow service of an enforcement notice complaining of faulty workmanship and requiring the work to be done again
This was a
motion by the London Borough of Sutton to remit for rehearing and determination
by the first respondent, the Secretary of State for the Environment, an
enforcement notice served by the appellants on the second respondents,
Pierpoint & Sons (Builders) Ltd, requiring work carried out on the frontage
of flats and shops at 14/25 High Street, Cheam, Surrey, to be done again on the
basis that the quality of the workmanship was not of sufficient standard.
Mr F M Drake
QC and Mr H Burnett (instructed by Sharpe, Pritchard & Co, agents for N B
Mitchell, of Sutton) appeared for the applicants, and Mr H K Woolf (instructed
by the Treasury Solicitor) represented the first respondent. The second
respondents were not represented.
Giving
judgment, LORD WIDGERY said that the second respondents, a firm of developers,
applied in 1967 for permission to redevelop an area in High Street, Cheam. In
giving permission the planning authority reserved certain matters, and in
particular imposed a condition providing for previous written approval by them
of ‘the type and treatment of the materials to be used on the exterior of the buildings.’ On January 14 1969 the developers’ architects
supplied the council with a schedule of external materials and colours, and a
week later the borough architect approved this on the council’s behalf. The
main pillars supporting the forward edge of the redeveloped property were to be
constructed in reinforced concrete, but to give them a satisfactory appearance
were to be clad in stone, and the approved schedule provided for ‘an artificial
stone face (ex mould), colour mid-Portland/Bath stone.’ When the works were completed, the council
complained of the manner in which the approved facing materials had been used.
They said that the developers had failed to understand and apply the
manufacturer’s instructions for use of the materials, with the result that the
quality of the work was unreasonably inferior. An enforcement notice was
served, the developers appealed, and an inspector from the Department of the
Environment held a local inquiry. In his report (paragraph 34), the inspector
found that the ‘Stone-craft’ aggregate used had not been applied in accordance
with the makers’ instructions; that in consequence, its finish was in general
of an unsatisfactory standard; and that, similarly, the
standard appropriate to high-quality brickwork on the facade of a building. The
Secretary of State nevertheless allowed the developers’ appeal, observing in
paragraph 6 of his decision letter:
The
[relevant] condition itself requires that details of the type and treatment of
the external materials shall be approved by the council prior to the
development being carried out, and it is considered that the council’s letter
of January 21 1969 clearly shows that the condition as worded had at that time been
properly observed. Whilst it may be that the council in approving the materials
could have expected the finish to be applied and the work carried out in a
proper and workmanlike manner and in accordance with the approved plans, the
view is taken that the condition as worded cannot be construed as requiring
[the developers] to do so and that the condition has not therefore been
breached.
Counsel for
the appellants had pointed out that literally it might be said that once the
developers had obtained approval for their proposals for the building’s facade
they could then disregard the local planning authority’s wishes and carry out
the work in altogether different materials. That was, however, an
interpretation which counsel did not support, and one which he (his Lordship)
thought could not be supported at all. In his opinion nobody could construe the
condition in question as a condition without giving it the meaning that the
materials approved were to be used, and he saw no reason why failure to use the
approved materials should not be accepted as a breach of the condition and a
proper basis for an enforcement notice. But what the local planning authority
were really saying here was that the specified materials were used with such
lack of skill and were applied so badly that the aesthetic view had been
offended. Counsel for the appellants had gone on to argue that the materials
should have been used in a good and workmanlike fashion, and that a provision
to such effect should be implied in the conditions attached to the planning
permission. In general, as he (Lord Widgery) saw matters, planning authorities
were not concerned with the quality of work. They were concerned to see that
the proposed development was appropriate to the site–that the pattern, styles and
colours were right, and so forth. It must be rare for a planning authority to
take any responsibility for controlling the quality of work. He (his Lordship)
did not see that this unusual requirement regarding quality of work could be
implied in the conditions of the planning permission in this case. It might
have been sensible to include a condition about the particular standard of
work, but such a condition could not be legally enforced on the basis of the
existing terms of the planning approval. The Secretary of State was right, and
the court could not change his order quashing the notice.
Agreeing,
ASHWORTH J said that he had glanced at the first two conditions imposed by the
appellants when granting permission. These were: ‘(1) The provision and maintenance
of accommodation for the storing of dustbins, to the satisfaction of the local
planning authority,’ and ‘(2) The provision and maintenance of screen fencing
to the satisfaction of the local planning authority.’ As at present advised, he (his Lordship)
thought that those conditions would give the appellants a measure of control as
to the way in which the accommodation and the fencing were carried out. The
condition now in issue, however, made no reference to the local authority’s
satisfaction with regard to the work, and, perhaps even more striking, the
authority’s approval referred to was required before the development, not
during or after.
MICHAEL DAVIES
J agreed with both judgments, and the appeal was dismissed with costs.
