Town and Country Planning Act 1971, section 246 — Enforcement notices — Appeal to High Court by council against decision of inspector who had upheld owners’ appeal in respect of enforcement notices — Question as to whether the demolition of two houses constituted development — ‘A question which like a ghost has haunted planning law for many years’ — Authorities considered — Held, laying the ghost to rest (subject to possible appeal), that the demolition of the houses in the present case did constitute development — Appeal from inspector allowed
of events leading up to this appeal was briefly as follows — The owners of the
two houses which were the subject of the proceedings were developers of an
adjoining office block and had purchased the houses in order to provide
additional car parking and with a view to enhancing the visual aspect by
landscaping and to improving road safety — After temporary planning permission
to use the houses as site offices for the development had run out, the owners
began to demolish them — The houses were not listed buildings and
obtained an interlocutory injunction restraining the owners, after they had
declined a request to stop, from carrying out any further demolition —
Enforcement notices, complaining of a breach of planning control, were issued
by the council, referring to the removal of slates, tiles and other roof
materials — The owners appealed against the notices to the Secretary of State
and an inspector appointed by him allowed the appeal and quashed the notices —
The inspector decided that the operations so far were the first stages of a
projected total demolition which was not part of preparatory works for the
erection of a building and was not such as to constitute an engineering
operation — He concluded that the operations did not constitute developments
requiring planning permission — The city council appealed to the High Court
under section 246 against the inspector’s decision (an appeal only allowed on
points of law)
judgment Mr David Widdicombe QC reviewed in detail the inspector’s decision
letter and a number of authorities which had been cited and discussed — The
judge held that the inspector had erred in law in misunderstanding the effect
of the decision in London County Council v Marks & Spencer Ltd,
but that the case was of little relevance to the present and the error was not
material — The inspector also erred in law in his understanding of the decision
in Iddenden v Secretary of State for the Environment; and in that case the error
was material — The inspector seemed to have thought that the Iddenden case laid
it down that in no circumstances could total demolition constitute development,
whereas it merely said that the demolition of unsubstantial structures, like
Nissen huts, was not development — Because of his misunderstanding of the
Iddenden decision the inspector had failed to pose the key question, namely,
whether in the present case the demolition was a building operation — The judge
took the view that the demolition of these two houses was a building operation,
ie one of the ‘operations normally undertaken by a person carrying on business
as a builder’ — He said ‘the pulling down of ordinary dwelling-houses like
these seems to me unquestionably within the scope of a builder’s business’ —
Thus the demolition of the two houses constituted development — The council’s
appeal was allowed and the case was sent back to the Secretary of State — Leave
to appeal was granted
Widdicombe’s judgment is disturbed on appeal he has laid this ghost to rest
The following
cases are referred to in this report.
Coleshill
& District Investment Co Ltd v Minister of
Housing and Local Government [1969] 1 WLR 746; [1969] 2 All ER 525; (1969)
68 LGR 334; 20 P&CR 679; [1969] EGD 736; 211 EG 727, HL
Iddenden v Secretary of State for the Environment [1972] 1 WLR 1433;
[1972] 3 All ER 883; (1972) 26 P&CR 553, CA
London
County Council v Marks & Spencer Ltd [1953]
AC 535; [1953] 2 WLR 932; [1953] 1 All ER 1095; (1953) 3 P&CR 409; 51 LGR
329, HL
This was an
appeal by Cambridge City Council under section 246 of the Town and Country Act
1971 against the decision of an inspector appointed by the Secretary of State
for the Environment whereby he allowed appeals by Milton Park Investment Ltd
against two enforcement notices served by the city council in respect of
alleged breaches of planning control at 21 and 23 Milton Road, Cambridge.
Christopher
Lewsley (instructed by Nabarro Nathanson) appeared on behalf of the appellants;
Michael Kent (instructed by the Treasury Solicitor) represented the first
respondent, the Secretary of State; Robert McCracken (instructed by Ginn &
Co, of Cambridge) represented the second respondent, Milton Park Investment
Ltd.
Giving
judgment, MR DAVID WIDDICOMBE QC said: this is an appeal under section
246 of the Town and Country Planning Act 1971 (now section 289 of the Town and
Country Planning Act 1990) against the decision of an inspector, acting on
behalf of the Secretary of State for the Environment, whereby he allowed
appeals against two enforcement notices served by the Cambridge City Council
(‘the council’) in respect of alleged breaches of planning control at 21 and 23
Milton Road, Cambridge.
Section 246
and the other provisions of the 1971 Act have now been repealed and re-enacted
in the consolidating legislation of 1990; but as the proceedings up to this
point have been conducted under the provisions of the 1971 Act, to keep things
simple I will continue to refer to those provisions. An appeal lies to this
court only on a point of law.
The
enforcement notices were issued on October 3 1989. The breach of planning
control alleged in each notice was:
. . . the
demolition of part of the premises involving the removal of all slates or roof
tiles, battens and other materials from the main roofs of the premises, the
removal of all slates or roof tiles and roof timbers from the roof of the
single-storey rear extension to the premises, and the making of holes in the
ceilings of some of the first-floor rooms in the premises without having
previously obtained the benefit of planning permission.
The requirements
of each notice were:
1. to cease
the alleged breach of planning control;
2. to replace
the slates or roof tiles on the main roof of the premises with materials to
match those currently in situ on the roof of the front two-storey bay-window
extension of the premises;
3. to replace
the slates or roof tiles, battens, roof timbers and other materials on the roof
of the single-storey rear extension to the premises to match those currently in
situ on the roof of the front two-storey bay-window extension of the premises;
4. to make
good and repair the ceilings in the first-floor rooms of the premises with
materials to match the existing ceilings.
The history of
the matter is as follows. The second respondents (whom I will call ‘the
owners’), a subsidiary of the Sir Robert McAlpine Group, were the developers of
an office block of about 140,000 sq ft in Milton Road, Cambridge, known as the
Westbrook Centre. With a view to providing additional car parking for the
development, enhancing its visual aspects by landscaping and improving highway
safety for vehicles using the approach road, the owners purchased two
semi-detached houses, 21 and 23 Milton Road, which adjoined the office block.
These houses were used, with temporary planning consent, as site offices for
the development. When the temporary planning consent ran out, and renewal was refused,
the owners began the demolition of the houses. The houses are not listed
buildings, nor are they in a conservation area.
The council
asked them to stop and, when they did not do so, obtained an ex parte injunction
in the High Court restraining them from carrying on any further demolition of
the properties. The work then stopped. Building preservation notices under
section 58 of the Town and Country Planning Act 1971 were issued, but these
were challenged by the owners and, as I understand it, were not confirmed by
the Secretary of State, presumably because the buildings were not of special
architectural or historic interest. Instead, the enforcement notices, the
subject of these proceedings, were issued, alleging a breach of planning
control and requiring the reinstatement of the houses.
The owners
appealed against the enforcement notices, and the appeal was dealt with by way
of written representations. In their notices of appeal the owners claimed that
there was no breach of planning control because demolition did not require
planning permission; and they referred to the decision of the Court of Appeal
in Iddenden v Secretary of State for the Environment [1972] 1 WLR
1433 in support of that proposition.
The council,
in their written representations, said the case was one of partial demolition
and drew attention to the fact that in a letter to the Secretary of State, the
owners had justified the removal of the roof and the other work which had been
done as necessary in order to prevent the occupation of the houses by
squatters. They claimed that the case was covered by the decision of the House
of Lords in Coleshill & District Investment Co Ltd v Minister of
Housing and Local Government [1969] 1 WLR 746. On the merits of the matter,
they drew attention to the shortage of housing in Cambridge and the size of
their ‘waiting list’.
In their
response to the council’s representations, the owners stated that the works
carried out were the initial stages of the proposed total demolition of the
properties. The intention was to demolish them utterly and level them to the
ground.
The inspector
issued his decision by letter dated May 15 1990. After referring to the
proceedings, he went on:
3. The appeal
sites are a pair of semi-detached two-storey houses on the western side of
Milton Road, immediately south of an access road which leads to a complex of
recently-completed office buildings. At the time of my inspection the condition
of the houses was substantially as set out in the notices although the timbers
of the main roofs, which remain in place, had been temporarily re-covered in
what appeared to be heavy duty polythene. The properties are virtually
identical, and as the two notices and appeals are founded on the same facts and
raise the same issues I will deal with them together.
. . .
5. In support
of ground (b) you submit, in the light of the case of Iddenden and Others v
Secretary of State for the Environment and Another [1972] 1 WLR 1433,
that demolition does not require planning permission. Although the houses have
so far been demolished only in part, your clients intended to and began to
demolish them entirely; that action was interrupted when the Council obtained a
High Court injunction restraining your clients from continuing with works of
demolition, and subsequently served a Building Preservation Notice and issued
the present enforcement notices.
6. In the
Council’s submission the decision of the House of Lords in the case of Coleshill
and District Investment Co Ltd v Minister of Housing and Local
Government [1969] 2 All ER 525 shows that partial demolition, as in this
instance, can amount to building operations constituting development requiring
planning permission. They distinguish the decision of the Court of Appeal in Iddenden
on the grounds that that case was concerned with the total demolition of
buildings of a temporary nature, whereas the Coleshill case dealt with
the partial demolition of permanent buildings. In the Council’s submission the
latter judgment is therefore directly applicable to the present circumstances.
7. The letter
dated 15th May 1989 from your clients’ parent company to the Secretary of
State, a copy of which was put in by the Council, clearly indicates that the
appeal properties were acquired by your clients with a view to providing additional
car parking for the adjoining office development, enhancing its visual aspect
by landscaping, and improving highway safety for vehicles using the access
road. The total demolition of the properties is implicit in those proposals,
and I am satisfied that that was your clients’ intention.
8. In the
light of the Coleshill case I accept that demolition — whether total or
partial — is capable of being development. The Courts had previously decided
that total demolition and clearance of the site may constitute works for the
erection of a building and therefore development (London County Council v
Marks & Spencer Ltd (1953) 3 P&CR 409, HL); however, your
clients propose to use the sites of the appeal properties for car parking,
landscaping and highway improvements rather than for the erection of any
building, and it therefore seems to me that that judgment does not lend support
to the Council’s case. The facts in Coleshill, on which the authority
seek to rely, were highly unusual in that what was to be demolished, namely
blast walls and embankments erected as external parts of an explosives store,
were not buildings in the ordinary sense of the word; moreover, as the Council
emphasise, that case was concerned with partial demolition only.
9. In Milton
Road the operations undertaken so far have been the first stages in the
projected total demolition of the houses, not their partial demolition with a
view to alteration, and in my view the facts are comparable to those in Iddenden
rather than in Coleshill. The projected total demolition was not to
form part of preparatory works for the erection of a building, and nor has it
been or would it be of such scale or complexity as to constitute an engineering
operation in its own right. In the light of the foregoing, and having taken
into account all the points made in the representations, I conclude that the
operations carried out do not constitute development requiring planning
permission. The appeals will therefore succeed on ground (b), and no
other aspect of the matter falls to be considered.
He allowed the
appeals and quashed the enforcement notices.
Mr Lewsley,
for the council, accepted that the inspector had found as a fact in para 7 of
the decision letter that total, not partial, demolition of the houses was intended.
He identified two errors of law in the decision. The inspector had erred (1) in
para 8 in his interpretation of London County Council v Marks &
Spencer Ltd [1953] AC 535 and (2) in para 9 in his statement that the facts
of this case were ‘comparable to those in Iddenden rather than in Coleshill‘.
As to (1), Mr
Lewsley said that the inspector was wrong to reject the Marks & Spencer case.
There was no relevant distinction between ‘works for the erection of a
building’, the phrase considered in the Marks & Spencer case, and
‘works for the development of the site for car parking, landscape and highway
improvements’, which was this case. The parties had not referred to the Marks
& Spencer case in their written representations, the inspector had
introduced it himself, without any reference back to the parties.
As to (2), Iddenden
was distinguishable from the present case because of the nature of the
structures there — Nissen huts and a lean-to workshop. The inspector had
misunderstood the case.
Generally, Mr
Lewsley’s proposition was that where demolition, as here, formed part of the
works necessary for the redevelopment of the site, or for a material change of
use of the site, it was part of the development and required planning
permission.
I can say
straight away that I think Mr Lewsley is right on his first point. The Marks
& Spencer case, which I will consider in more detail later in this
judgment, was concerned with the phrase ‘works for the erection of a building’,
but no special significance attached to the fact that the development consisted
of a building, apart from the fact that that was the phrase in the statute.
The Court of
Appeal, who were upheld by the House of Lords, held that the phrase covered
demolition of the old building on the site as well as the erection of the new
one. The same reasoning would support the inclusion of the demolition of the
old building if the development proposed had been something other than a
building — if it had been the development proposed for the site in the present
case, for example.
Mr Kent, for
the Secretary of State, and Mr McCracken, for the company, did not seriously
argue otherwise. Mr Kent said that the case was anyway of only marginal
relevance and Mr McCracken drew attention to the passages in the judgments
which said that demolition by itself was not development.
So I think
there is an error of law in the decision here. Whether the error was a material
one is something I must consider in a moment.
As I have had
occasion to say before, I think it is unwise for an inspector in his decision
letter to introduce new points of substance without reference back to the
parties. In some cases questions of natural justice may arise, and where, as
here, it is a matter of law, it renders an appeal to this court all too likely.
I also find it surprising that, in a case which raises such a difficult and
important question of law, the Secretary of State did not undertake the
decision himself rather than delegate it to an inspector.
Before
considering Mr Lewsley’s second point, about the Iddenden case, I must
look at the decision of the House of Lords in Coleshill. That was the
case of the wartime ammunition depot. It consisted of six buildings, each
surrounded by a blast wall about 9 ft high, and a grass-covered earth embankment
sloping down from the top of the wall to the ground about 8 ft or 10 ft away.
In order to put the buildings to a storage use appropriate for peacetime, the
owners started to remove the embankments and walls. An enforcement notice was
served in respect of the removal of the embankments, and the owners made an
application for determination whether removal of the blast walls required
planning permission.
The minister
upheld the enforcement notice and on the application determined that planning
permission was required. He held that the embankments and walls were integral
parts of each building and that their removal constituted development requiring
planning permission. The removal of the embankment was an ‘engineering
operation’, and the removal of the walls was a ‘building operation’, namely the
structural alteration of a building, within the definition of ‘development’ in
what are now sections 22(1) and 290(1) of the 1971 Act.
The House of
Lords unanimously upheld this decision. In doing so, all the learned law lords
rejected the suggestion that the issue in the case was whether demolition by
itself was ‘development’. The right approach was (1) to ascertain the
operations involved and (2) to ask whether they came within the definition of
‘development’ in the Act. This approach is clearly stated in the speech of Lord
Morris of Borth-y-Gest, who gave the first opinion. He said at p 752:
My Lords, one
question that was persistently raised in this appeal was formulated as being
whether demolition constitutes development for the purposes of the Town and
Country Planning Act 1962. Neat and arresting as the question so expressed may
seem to be it is not in fact the direct question which calls for our decision.
If someone propounded a question of comparable generality such as whether
modernisation constitutes development someone else might ask for a ruling as to
whether renovation constitutes development. No one of these inquiries has precision.
If development needs permission, which in most cases it does, and if
development is defined, as in the Act it is, the true path of inquiry first
involves ascertaining exactly what it is that it is desired to do, or exactly
what it is that has been done, and then to see whether that comes within the
statutory definition of development. Once some completed or projected work or
operation is fully and clearly described then the words of definition can be
applied. It is unnecessary and may be misleading to give the work of operation
some single labelling word and then try to apply the definition to that word.
We are here concerned with actual operations and not with possible operations
or with those which can for the future be imagined. Why, then, introduce and
interpose some general word of description when precise words of description
are at hand? Why gaze into the crystal
when one can read the book?
The other law
lords adopted the same approach. I need not examine all the speeches, but I can
cite a passage from Lord Pearson at pp 770 to 771, which is to the same effect:
The argument
for the appellants was mainly based on the proposition that demolition, or
demolition in or by itself, or demolition per se, does not constitute
development. I think there is in this proposition some truth but only a limited
amount of truth. On the one hand, there is in section 12 and in the relevant
definitions in section 221 no mention of or reference to demolition or removal
or any such operation. Therefore, an operation does not qualify as development
by virtue of being a demolition or removal operation. It is not right to say
‘This is a demolition or removal operation: therefore, it is development.’ On the other hand, there are not in section
12 or in the relevant definitions in section 221 any words excluding operations
from being development if they are demolition or removal operations. An
operation is not disqualified for being development because it is a demolition
or removal operation. It is not right to say ‘This is a demolition or removal
operation: therefore, it cannot be development.’ Notwithstanding that an operation is a
demolition or removal operation, one still has to see whether it comes within
the scope of development as defined in section 12 assisted by section 221. It
may be within the definition of ‘building operations’, eg, because it
constitutes a structural alteration of a building or because it is such an
operation as to be normally undertaken by a person carrying on business as a
builder. It may be an engineering operation. Whether it is or not any of those
things depends on the facts of the particular case.
The House of
Lords held that the minister’s finding that the embankments and walls formed an
integral part of each building was a finding of fact which contained no error
of law; that the removal of the embankments was an ‘engineering operation’; and
that the removal of the blast walls was a ‘building operation’ that is a
‘structural alteration’ of the buildings which materially affected their external
appearance. The works were therefore ‘development’ and required planning
permission.
The first
question in the present case is, therefore, what are the operations which fall
to be considered? I think that this
question was answered by the inspector in para 7 of the decision letter, which
I will read again:
The letter
dated 15th May 1989 from your clients’ parent company to the Secretary of
State, a copy of which was put in by the Council, clearly indicates that the
appeal properties were acquired by your clients with a view to providing
additional car parking for the adjoining office development, enhancing its
visual aspect by landscaping, and improving highway safety for vehicles using
the access road. The total demolition of the properties is implicit in those
proposals, and I am satisfied that that was your clients’ intention.
The inspector
is here rejecting the council’s argument that it was a case of partial
demolition, but I think that in doing so he finds as a fact that the demolition
of the houses is linked with the redevelopment of the site for car parking,
landscaping and highway improvements in connection with the adjoining office
development. The total demolition of the houses is ‘implicit’, he says, in the
redevelopment proposals. It is not suggested that there is any error of law in
para 7; there was ample evidence before the inspector to support this
conclusion.
Do these
operations constitute ‘development’ within the meaning of the Act? That expression is defined in section 22(1)
of the Act to mean ‘the carrying out of building, engineering, mining or other
operations in, on, over or under land, or the making of any material change in
the use of any buildings or other land’. Section 22(2) lists certain exceptions
to that definition.
In section
290(1) there are the following further definitions:
‘building’
includes any structure or erection, and any part of a building, as so defined,
but does not include plant or machinery comprised in a building; ‘building
operations’ includes rebuilding operations, structural alterations of or
additions to buildings, and other operations normally undertaken by a person
carrying on business as a builder;
‘engineering
operations’ includes the formation or laying out of means of access to
highways;
‘land’ means
any corporeal hereditament, including a building . . .;
‘means of
access’ includes any means of access, whether private or public, for vehicles
or for foot passengers, and includes a street.
It is common
ground in this case that the proposals for car parking, landscaping and highway
improvements constitute ‘development’ and require planning permission, though
Mr McCracken said that the proposals might only be ‘development’ because they
constituted a material change of use. No details of the work necessary for the
proposals was in evidence, but it seems unlikely to me that only a change of
use is involved. Be that as it may, the disputed element is the demolition of
the houses.
Mr Lewsley
says that demolition of the houses is development because it is part of the
totality of the proposals for the site. He says that it is not necessary to
consider whether it would be development in the absence of proposals for the
use of the site afterwards. Whether this proposition is correct is something I
must consider in a moment.
It was in
connection with this question that the inspector introduced the Marks &
Spencer case. That case concerned a site in Marylebone which had planning
permission for redevelopment under the Town and Country Planning Act 1932. The
old buildings on the site were demolished in 1939, but the erection of the new
buildings was prevented by the war. After the war the project was resumed, and
the question arose whether there was deemed planning permission for the
operations under the Town and Country Planning Act 1947. This depended on
section 78(1) of the Act, which granted deemed planning permission where ‘any
works for the erection of a building have been begun but not completed before
the appointed day’.
The Court of
Appeal [[1952] Ch 549], by a majority, held that the ‘works for the erection of
a building’ included the demolition of the old buildings and that the project
had deemed planning permission under the Act of 1947. This was upheld by the
House of Lords.
For the
reasons I gave earlier, I think that the inspector was wrong to dismiss this
case because it concerned a building. The same reasoning would apply whatever
the proposed development of the site. However, I agree with Mr Kent for the
Secretary of State that the phrase ‘works for the erection of a building’ is
not one which calls for consideration in the present case, so that the case has
little if any relevance. It decided that demolition was part of the works for
the redevelopment of the site, but it does not supply the answer to the question
whether demolition as part of the proposals for the site is within the
definition of ‘development’ in the Act of 1971.
In my
judgment, therefore, the inspector’s error of law on this point was not a
material one; the case is of little relevance, though not for the reason he
gave.
Mr McCracken,
for the owners, also took the view that the case was concerned with a different
question and he drew attention to two passages in the judgments in which it was
said that demolition by itself is not development. In the Court of Appeal, at p
563, Jenkins LJ said:
Returning to
the phrase against that background, it is ‘works for the erection or alteration
of a building’. That phrase seems to me to be a phrase of wide import, and the
inference is that it was adopted so as to cover a wide field of work. If the
legislature had intended to confine the application of section 78(1) to cases
where buildings had been begun but had not been completed, inevitably the
section would have run: ‘Where the erection or alteration of a building has
been begun but not completed’. Here we have ‘works for the erection or
alteration of a building’, so as to include, in terms, operations which are not
in themselves building operations. For my part I find irresistible the
conclusion reached by the judge as to the meaning of these words when he said:
‘It is clear that the erection of a building need not have been begun, because
otherwise no meaning would have been given to the words ‘works for’.’ It is, therefore, in my view, not necessary,
in order to bring a case within the subsection, that one should be able to
point to some work of construction on the site and say: ‘That is part of the
new building the erection of which ‘has been begun’.’ It is enough if, on the facts, one can
conclude that on the site in question operations have been carried out which
are part of the totality of operations necessary on that site for the purpose
of carrying to completion a particular building project. Where it is shown by
the evidence that a building owner had in view a particular building project to
be carried out on a site already built upon, and that his intention to carry
out that project had never been abandoned, then work such as the demolition of
the buildings already on the site, as a necessary preliminary to the carrying
out of the building project, would, in my judgment, be ‘works for the erection
or alteration of a building’ within the meaning of the subsection.
In the House
of Lords, Lord Normand, with whose speech the other law lords agreed, said at p
541:
As regards
the other reason which influenced the Master of the Rolls, I have not found it
necessary to consider in what circumstances permission may have been required
to demolition works as such under the Act of 1932, for, as I have said, I agree
with the opinions of Jenkins and Morris LJJ, who assumed that demolition works
did not require a planning permission.
I think Lord
Normand must have said that the point was ‘assumed’, because there is nothing
in the reports, as far as I can see, to suggest that it was an issue in the
case.
I return to
the inspector’s decision letter. He next deals with the Coleshill case.
He says [in para 8]:
The facts in Coleshill,
on which the authority seek to rely, were highly unusual in that what was to be
demolished, namely blast walls and embankments
ordinary sense of the word; moreover, as the Council emphasise, that case was
concerned with partial demolition only.
The fact that
the ammunition stores in that case were not ‘buildings in the ordinary sense of
the word’ seems to me irrelevant; the point is that they were buildings within
the definition in the Act. He is, however, correct to point out that Coleshill
was a case of partial demolition and (in his para 9) that the demolition of
the blast walls was held to be ‘development’ because it was a structural
alteration of a building. The demolition of the embankments was development
because it was an engineering operation. I think, therefore, that the inspector
was right to conclude that the present case is not comparable on its facts to Coleshill.
In his para 9,
the inspector repeats the finding that the present case was one of total
demolition and says: ‘in my view the facts are comparable to those in Iddenden
rather than in Coleshill‘. This brings me to Mr Lewsley’s second point
of law, that the inspector misunderstood the Iddenden case.
Iddenden v Secretary of State for the Environment [1972] 1 WLR 1433
was an enforcement notice appeal about land at Alton in Hampshire. In the
Divisional Court, Willis J stated the facts as follows, at p 1435:
The premises
in respect of which the enforcement notice was served was a complex of
buildings and land put to various relevant uses near Alton which originally had
consisted, so far as the buildings are concerned, of three nissen huts and a
lean-to. The site had formerly been used as an agricultural small holding and
depot for a contracting and repair business, but when the landowners bought the
premises in 1967, they were minded to carry on a manufacturing use on the
premises and applied for planning permission to pull down the existing
buildings and to re-erect new buildings more suitable for their purposes. This
application was refused in March 1968, and in the result they chose to erect
three buildings without planning permission. They included the only building
relevant to this appeal, which is described in the schedule to the enforcement
notice as ‘an Arcon type prefabricated building measuring about 150 feet by 20
feet near the front of the premises.’
What was asserted in the enforcement notice was that the buildings had
been erected within four years from February 1970 without the grant of planning
permission, and the landowners were required to demolish and remove all
unauthorised buildings.
The owners
challenged the enforcement notice claiming that it was invalid because it only
required the removal of the new building and did not also require the reinstatement
of the Nissen huts and lean-to workshop. That argument received short shrift
from the Divisional Court, which held that the local planning authority had a
discretion as to what steps to require. In the Court of Appeal the Divisional
Court’s ruling on that was upheld, but a second point arose, namely whether
demolition of the huts and lean-to was development within the Act. On that,
Lord Denning MR said, at p 1439:
The words of
the section are ‘to remedy the breach.’
That means the breach of planning control. What was the breach in this
case? If it was the pulling down of the
old nissen huts or the old workshop, then it may be that in order to remedy the
breach they would have to be restored. But I do not think their demolition was
a breach of planning control. Whilst some demolition operations may be
development — see Coleshill and District Investment Co Ltd v Minister
of Housing and Local Government [1968] 1 WLR 600, [1969] 1 WLR 746 — the
demolition of buildings such as these was not development. Mr Iddenden did not
need planning permission to pull them down. No doubt the pulling down of the
old and the erection of the new was all one combined operation by the workmen.
But in planning law they are different operations. Mr Iddenden only required
planning permission for his new buildings and their user. The only breach by
him of planning control was the unauthorised erection of the new buildings, the
concrete base, and the user of the factory. The enforcement notice required him
to remedy that breach. It told him the steps he had to take. It was perfectly
good.
Mr Lewsley
says that the explanation of this passage lies in Lord Denning’s use of the
phrase ‘buildings such as these’. He was dealing with Nissen huts and a lean-to
workshop and saying that, whatever might be the case with more substantial
buildings, the removal of these items was not development. The inspector seemed
to think that Lord Denning was drawing a distinction between partial demolition
and total demolition, and he wrongly relied on that.
Mr Kent for
the Secretary of State said that the inspector had not tied himself to the Iddenden
case — he merely said it was more comparable than Coleshill. Mr
McCracken drew attention to Lord Denning’s statement that ‘No doubt the pulling
down of the old and the erection of the new was all one combined operation by
the workmen. But in planning law they are different operations’.
The problem
with Iddenden is that this second point dealt with by the Court of
Appeal is treated in a fairly summary manner, no doubt because it was not
essential to the decision, the enforcement notice being valid for the reasons
given by the Divisional Court and upheld by the Court of Appeal. But I think it
is clear what was decided.
First, I have
no difficulty in accepting Mr Lewsley’s point about the phrase ‘buildings such
as these’. I think the Master of the Rolls was emphasising the insubstantial
nature of the structures, saying in effect that it does not require an
engineering or building operation to remove them. Second, Lord Denning’s point
that in planning law demolition is a different operation, to be considered
separately from any other works with which it is combined, I understand to be
saying that the nature of the operations is not changed because of their
association with other works. The question whether demolition is development
has to be considered whether or not the demolition is part of a larger scheme.
It seems to me
that this must be so — in the present case, even if the demolition of the
houses is considered as part of the overall scheme for the site, the question
still arises whether the demolition is an operation within the definition of
‘development’ in the Act. So I am not convinced by Mr Lewsley’s argument that
demolition is development merely because it is part of a larger scheme for the
site. I cannot see how that changes the nature of the operation or alters the
question whether such operation is within the definition. I think Iddenden is
against him on that.
Nevertheless,
I think the inspector did err in his understanding of the Iddenden case.
He seems to have thought that it laid down that in no circumstances can total
demolition constitute development. In my view, it does not say that. It merely
says that the demolition of insubstantial structures like Nissen huts is not
development. The question of the demolition of substantial buildings like
dwellinghouses is left open. So I think that the inspector did misunderstand
the Iddenden case and thought that it went further than it did.
If my analysis
of the cases is correct, the ultimate question in this appeal is, therefore,
whether demolition of these houses is development within the definition in the
Act. This is a question which like a ghost has haunted planning law for many
years. The time has now come when the ghost must be laid to rest — I see no
escape from that task.
There has been
no decision that total demolition of a building cannot be development. It has
been discussed in the cases and differing views have been expressed, but there
appears to be nothing binding on me. I accept the inspector’s view that the
demolition here is not an ‘engineering operation’ — there is no reason to doubt
that. But he does not pose the key question, whether it is a ‘building
operation’, because he thought it was not open to him to consider that in view
of Iddenden.
But that
question is open, for the reasons I have given, and it has to be answered. I
take the view that the demolition of these houses is a ‘building operation’,
that is an ‘other operation normally undertaken by a person carrying on
business as a builder’. There are no doubt many demolitions which are not
normally the business of a builder — a nuclear power station was mentioned in
argument, and there will be other examples, less extreme than that; and there
will be debatable cases where evidence may be desirable — but the pulling down
of ordinary dwellinghouses like these seems to me unquestionably within the
scope of a builder’s business, whether he goes on to develop the site
afterwards or not. The Nissen huts and lean-to workshop in Iddenden are
distinguishable.
Lord Pearson
in the Coleshill case, at p 771B, in the passage I have cited, thought
that this was a question which might have to be considered, and he referred
specifically to the words on which I have relied.
The
alternative question is whether the demolition of these houses is an ‘other
operation in, on, over or under land’. I prefer not to express a view on that.
It is a difficult question on which there is little or no authority. I only
note that in Coleshill the majority of their lordships all thought that
some limitation must be imposed on the words ‘other operations’ by reason of
their proximity to or association with ‘building, engineering or mining
operations’.
Mr Kent said
that it would be anomalous if demolition were development where there was
evidence of an intention to redevelop the site but not where there was no
evidence of such intention. On the view I have taken, that anomaly does not
arise.
It would also
be anomalous, in my view, if demolition of part of a house, perhaps the major
part, is development and requires planning
house is not development and can be carried out without permission. There is no
logic in that, and that anomaly also, on the view I have taken, does not arise.
I can
summarise my conclusions as follows: (1) The inspector erred in law in his
understanding of the Marks & Spencer case, but the error is not
material because the Marks & Spencer case is of little relevance in
any event. (2) The inspector erred in law in his understanding of the Iddenden
case, and the error is material because he failed to consider whether the
demolition of the houses was a building operation. (3) The demolition of these
houses is not ‘development’ merely because it is part of larger proposals for
the development of the site. (4) The demolition of these houses is
‘development’, namely ‘a building operation’, being an ‘other operation
normally undertaken by a person carrying on business as a builder’.
Finally, I
should mention two points made by Mr McCracken. First, he points out that the
council’s case before the inspector was based on the proposition that the
demolition was only partial. Mr McCracken said that the inspector could hardly
be blamed, therefore, if he treated the case as one in which the issue was
between partial and total demolition. It is true that the council’s case was
based on partial demolition, and the inspector rejected that. But I do not think
that excuses a decision which is wrong in law. The fact that the council put
the case the way that they did did not deprive the inspector of any factual
material. Once he had the material, it was his responsibility to get the law
right.
Second, Mr
McCracken drew attention to the wording of the enforcement notices. The breach
of planning control alleged is ‘the demolition of part of the premises’ and the
work done is specified and alleged to be without the benefit of planning
permission. But this is factually correct — that is as far as the demolition
had got. I cannot see that any different wording would be called for to allow
for the fact that total demolition was intended.
The appeal
will therefore be allowed and the case remitted to the Secretary of State with
the opinion of the court for rehearing and determination by him.
Appeal
allowed with costs. Leave to appeal granted.