Town and country planning – Enforcement notice – Conservation area – Building – Local authority serving enforcement notice on appellant alleging unauthorised demolition of part of wall in conservation area – Inspector appointed by respondent secretary of state upholding notice – Appellant appealing – Whether partial demolition constituted “relevant demolition” within meaning of section 196D of the Town and Country Planning Act 1990 – Whether inspector wrongly failing to consider whether works were permitted alteration – Whether inspector failing to consider whether works part of alteration process – Appeal dismissed
The interested party local authority served an enforcement notice on the appellant alleging a breach of planning control by the unauthorised demolition of a curtilage listed wall in the Bath Conservation Area and requiring the appellant to reinstate the wall to the North Upper Lansdown Mews at the rear of Dixon Gardens to match the remaining section of the wall. The appellant had removed a pedestrian gate and a section of wall in order to create vehicular access to a parcel of land on which she wanted to build a dwelling house. An inspector appointed by the respondent secretary of state rejected the appellant’s appeal and upheld the notice.
By class C of part 11 of Schedule 2 to the Town and Country Planning (General Permitted Development (England) Order 2015, development of the whole or any part of a gate, fence or wall was permitted, unless it was “relevant demolition” for the purposes of section 196D of the Town and Country Planning Act 1990. Section 196D(3) provided that “relevant demolition” was demolition of a building that was “situated in a conservation area in England”.
The appellant appealed. While accepting that whether the works amounted to demolition or alteration was a matter of fact and degree, she contended that: (i) the inspector had erred in law by focussing what was removed rather than considering the works in the context of the whole wall; (ii) even if that were the proper approach, the inspector having found that the works amounted to demolition should have gone on to consider whether they might also amount to alteration; and (iii) the inspector erred in failing to have regard to the fact that the works were part of a process of alteration.
The appeal was dismissed.
(1) The starting point had to be to consider the definition of “building” in section 336(1) of the 1990 Act which included “any structure or erection, and any part of a building, as so defined”. Parliament, in enacting statutory amendments in 2013, had to be taken to have been aware of that definition and to have intended that it would apply to the word “building” in section 196D(3) “unless the context otherwise requires”. There was nothing in the wording of section 196D which required a different interpretation of the word “building” to that provided in section 336(1). That contrasted with what led the House of Lords in Shimizu (UK) Ltd v Westminster City Council [1997] 1 WLR 168; [1997] PLSCS 42 to conclude that a different interpretation of the statutory provisions then under consideration was indicated in that case. It was the precise wording of section 7 of the 1990 Act which led the majority to conclude that the extended meaning of the word “building” had no function there. The same could not be said of section 196D which had an extended function to provide that the demolition of part of a gate or wall was not permitted development in a conservation area. It was a matter of interpreting the statutory provisions rather than assessing the need for consistency between the control of conservation areas and listed buildings. Whereas the control of both was formerly dealt with under the 1990 Act, the former had now been taken out of that regime and was subject to the planning regime. There was a difference of principle between listed buildings, where one building of part of a building as listed was under consideration, and conservation areas, where a wider area was under consideration. The inspector had made no error of law in focussing on what had been removed, rather than what had been removed in the context of the wall as a whole.
(2) It was clear from the decision letter that the inspector had regarded the works as being purely works of demolition without any aspect of alteration. She had visited the site and was entitled to conclude that the works were works of demolition. That conclusion was not vitiated by a failure to spell out that, even though the works were works of demolition, they did not at the same time amount to works of alteration.
(3) The inspector was clearly aware of the argument that the works were part of a process of alteration but concluded that the works amounted to demolition, having regard in particular to the absence of any work other than the removal of the gate, the lintel and the stone work. Although the inspector dealt with the argument very shortly, she did deal with it and rejected it, which on the evidence before her she was entitled to do.
Matthew Reed QC (instructed by Thrings LLP, of Bath) appeared for the claimant; Isabella Tafur (instructed by the Government Legal Department) appeared for the defendant; the interested party did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read a transcript of Barton v Secretary of State for Communities and Local Government.
