War damaged buildings — Proposed rebuilding — Application for determination whether an application for planning permission required — Permitted development under the General Development Order — Land free of buildings for more than 40 years — Whether planning permission granted by General Development Order class XI — Whether permitted development distinguished between operations and use — Whether permitted development restricted to the restoration or rebuilding of war damaged building
In 1986 the
appellants applied to the local planning authority, Camden London Borough
Council, under section 53 of the Town and Country Planning Act 1971 for a
determination whether a proposed development required planning permission. The
appellants proposed to erect some cottages on an area of open ground which had
once been the site of a building or buildings damaged during World War II and
later demolished. The appellants contended that an express planning application
was not required as article 3 of, and class XI of Schedule 1 to, the Town and
Country Planning General Development Order 1977 permitted development
consisting of ‘the rebuilding, restoration or replacement of buildings . . .
which have sustained war damage. . .’.
The appellants
appealed the local planning authority’s decision, that planning permission was
required, to the Secretary of State for the Environment. He decided that in
certain circumstances planning permission was not required where a building
which had sustained war damage, however slight, and has subsequently been
demolished for any reason, is to be rebuilt at any time. The local planning
authority’s appeal against that decision was allowed by Farquharson J (May 26
1988). The appellants alleged that he had erred in law in that decision.
1. The words
of class XI mean that the ‘rebuilding, restoration or replacement of buildings
. . . which have sustained war damage’ covers the rebuilding, restoration and
replacement of the actual buildings that have sustained the war damage. It
would not, therefore, be permitted development to restore one part of a
building where a further part only had been damaged during the war. Works
carried out for reasons other than that the buildings have sustained war damage
are not within the terms of class XI: see p 5C-E.
2. The
decision of the Secretary of State for the Environment, that if a building
sustains war damage and could be rebuilt under the general planning permission
granted by virtue of the provisions of article 3 of, and class XI of the first
Schedule to, the General Development Order, then the provisions of section
33(2) of the 1971 Act would confer permission to use it for purposes for which
it was designed, was obiter. Class XI is confined to operational
development and does not have the effect of changing the use of land. Thus,
even if the appellants’ proposals had been permitted under class XI, they could
not have relied on section 33(2) to authorise the use of new buildings for a
purpose different from that for which the buildings they were replacing had
been used prior to demolition: see p 6A-C.
referred to in the judgments
Appeal against
a decision of Farquharson J
This was an
appeal against a decision of Farquharson J (May 26 1988), who had allowed an
appeal by Camden London Borough Council, the local planning authority, against
a decision of the Secretary of State for the Environment, who had allowed
appeals by the appellants under section 36 of the Town and Country Planning Act
1971 against a decision of the local planning authority under section 53 of the
1971 Act.
(instructed by Michael Freeman & Co) appeared on behalf of the appellants.
Rich QC and Jonathan Karas (instructed by the solicitor to Camden London
Borough Council) appeared for the respondent local planning authority.
following judgments were delivered.
O’CONNOR LJ:
This appeal raises a short point of law on the
construction of the class XI exemption under article 3 of the General
Development Order 1977. The site with which we are concerned was described by
the inspector in his report. It consists of a piece of open ground in the Vale
of Health, Hampstead Heath. It has been open ground for more than 40 years.
Adjacent to it is the North Hampstead Amusement Park. When the inspector
inspected the site he found that some vehicles were being stored on it.
In 1986 the
three appellants applied to the local planning authority, Camden London Borough
Council, under section 53 of the Town and Country Planning Act 1971. That
section provides:
(1) If any person who proposes to carry out any
operations on land, or to make any change in the use of land, wishes to have it
determined whether the carrying out of those operations, or the making of that
change, would constitute or involve development of the land, and, if so,
whether an application for planning permission in respect thereof is required
under this Part of this Act, having regard to the provisions of the development
order . . ., he may, either as part of an application for planning permission,
or without any such application, apply to the local planning authority to
determine that question.
The three
appellants said that they were persons who proposed to carry out a building
operation on the land, and they wanted to know whether it would constitute
development. They in fact accepted that it did constitute development, but they
wanted to know whether an application for planning permission was required,
because they said that they were exempted from applying for such permission by
class XI and article 3 of the General Development Order. The local planning
authority decided that they were wrong about that and answered that they did
need planning permission. The [appellants] appealed to the Secretary of State
for the Environment. In due course a public inquiry took place and the
inspector reported that in certain events they did not need planning
permission. The Secretary of State supported that view. Thus the local planning
authority appealed to the learned judge who, in his turn, said that the
Secretary of State had erred in law, and returned the case to him. The
appellants appeal against the judge’s decision.
The short
reason why the appellants say that they do not require planning permission to
put up their building is, they say, that they are doing no more than replacing
a building which was there during the second world war and at some stage it
suffered some war damage. Then later it was pulled down or disappeared. At all
events, there has been no sign of a building for the last 45 years or more.
I turn at once
to the relevant statutory provisions. One must start with section 22 of the
1971 Act. Section 22(1) provides:
In this Act,
except where the context otherwise requires, ‘development’, subject to the
following provisions of this section, means 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.
There follows
a whole list of provisos which are not relevant to this part of the argument.
It will be seen that two wholly distinct categories of development are defined
in that subsection: what can conveniently be called the operational development
and, in contrast, the change of use development. Section 23(1) provides:
Subject to
the provisions of this section, planning permission is required for the
carrying out of any development of land.
We then pass
to article 3 of the General Development Order. Para (1) provides:
Subject to
the subsequent provisions of this order, development of any class specified in
Schedule 1 to this order is permitted by this order and may be undertaken upon
land to which this order applies, without the permission of the local planning
authority or of the Secretary of State.
There follows
a whole set of provisos, which again are not relevant for present purposes. In
Schedule 1 is found class XI. It is headed ‘War damaged buildings, works and
plant’. The provision reads:
The
rebuilding, restoration or replacement of buildings, works or plant which have
sustained war damage, so long as: —
(a) the cubic content of the building or of the
works or plant immediately before the occurrence of such damage is not
increased by more than such amount (if any) as is permitted under Class I or
Class VIII;
(b) there is no material alteration from the
external appearance immediately before the occurrence of such damage except
with the approval of the local planning authority.
Class XI is
concerned solely with operational development. It says nothing whatever about
change of use development, and that distinction has, in my judgment,
unfortunately been lost sight of, at least in part, in the decision letter. But
I am in no doubt that class XI refers solely to operational development and has
nothing whatever to do with change of use.
Starting with
that in mind, what happened was this. The inspector and the Secretary of State
construed the words ‘which have sustained war damage’ as doing no more than
identifying what buildings, works or plant can be rebuilt, restored or
replaced. The inspector said at para 75 of his report:
At this point
it is important to be clear about the provisions of the [General Development
Order]. Class XI of Schedule 1 refers to the ‘rebuilding, restoration or
replacement of buildings . . . which have sustained war damage’. There is no
requirement that structures which are the subject of proposed rebuilding must
have been demolished as a result of war damage and no provision as to the
severity of the damage. It seems to me that whatever the intention of this
legislation, its effect is to allow buildings which have sustained only slight
war damage, such as broken windows, and then have been demolished for quite
unrelated reasons to be later rebuilt.
76. Given
that situation, the dispute about whether the building on the appeal site was
demolished because of war damage is irrelevant. The war damage suffered by this
building may well have only amounted to broken windows or roof tiles but that
appears to be sufficient to meet the terms of Class XI.
The inspector
summarised his conclusions in para 78 of his report. I need read only the third
of them:
The building
suffered minor war damage; it was later demolished, most probably before the
end of the war.
In his
recommendations the inspector, I think, had in mind the fact that class XI
applies only to operational development. Introducing his recommendation, there
had been some change during the course of the hearing as to what the
application was really for. It had started life as an application to put up a
building which was in fact to be five cottages. Later it was changed before the
inspector to a building which looked like and, if built, was likely to be four
cottages. Thus he made his recommendation. He said:
If the
proposal is interpreted as being the erection of 4 cottages, meaning 4
dwellings for residential use, I recommend that it be determined that planning
permission is required. If the proposal is regarded as being the erection of a
building providing 4 potential dwellings as shown in the submitted plans but to
be left unused, I recommend that it be determined that planning permission is
not required.
It was that
report which the Secretary of State considered and on what he issued the
decision letter.
When one turns
to the decision letter, the relevant paragraph is para 5, and we find the
decision:
The Secretary
of State’s view of the effect of the provisions of Class XI of Schedule 1 to
the [General Development Order] accords with the Inspector’s in that, whatever
the intention, the effect is to allow (subject to compliance with its
limitations) buildings which have sustained war damage, however slight, and
have subsequently been demolished for any reason, to be rebuilt at anytime.
That was the
point of law which was appealed to the judge.
Farquharson J
disagreed with the view of the Secretary of State. He said at p 7 of his
judgment, having considered the arguments which had been placed before him:
. . . going
back to the terms of Class XI, the fallacy, in my judgment, of the Secretary of
State’s reasoning is that he is not looking at those introductory words as a
whole. Those introductory words, I repeat, are ‘the rebuilding, restoration or
replacement of buildings, works or plant which have sustained war damage’.
It is not
possible in my judgment to divorce the words ‘which have sustained war damage’
from those which precede it. The need for the rebuilding, restoration or
replacement is because the buildings, works or plant have sustained war damage.
The adjectival phrase ‘which have sustained war damage’ is not to be regarded
simply as a qualification which enables any rebuilding, restoration or
replacement to take place at any time. If the works are carried out for reasons
other than that the buildings, works or plant have sustained war damage they
are not within the terms of the exemption.
He went on to
point out that in his judgment class XI ‘does not in my view cater for a
developer who many years after the damage has been sustained purchases the
building, in however a dilapidated state, and seeks to carry out a rebuilding
operation without planning permission’.
Mr Howell, on
behalf of the appellants, has submitted that the learned judge has fallen into
error in construing class XI in that way. He has submitted that the words are
clear and that the construction put upon them by the Secretary of State is
right. He submitted that, in effect, the learned judge had construed the words
as meaning ‘the rebuilding, restoration or replacement of buildings, works or
plant required as a result of or by reason of or because of war damage
sustained’, and that it was not permissible to construe them in that way. He
drew our attention to examples of where the draftsman has been
dealt with was the actual war damage. So we find in section 22(2)(a) of
the 1971 Act an example of such wording. That subsection provides:
(2) The following operations or uses of land
shall not be taken for the purposes of this Act to involve development of the
land, that is to say —
(a) the carrying out of works for the
maintenance, improvement or other alteration of any building, being works which
affect the external appearance of the building and (in either case) are not
works for making good war damage . . .
So there,
submits Mr Howell, is an example of the construction for which Camden Borough
Council contend in the present case. He drew attention to other instances, but
they do not carry the argument any further.
Indebted as I
am to Mr Howell for his clear argument on this point, I cannot agree with it.
In my judgment, the words of class XI are crystal clear and they mean that the
‘rebuilding, restoration or replacement of buildings which have sustained war
damage’ cover the rebuilding, restoration and replacement. The words do not
just identify the buildings, as is contended by the Secretary of State. The
learned judge was right, in my judgment.
It is only
necessary to look at the limitations of class XI to see that that must be so.
The first one is that the size of the building is to be no greater than it was
immediately before the damage occurred. The second limitation is that there is
to be no material alteration to the external appearance immediately before the
occurrence of such damage. It is quite plain that the permission which has been
granted for these operational developments — the carrying out of these works —
is in fact for the restoration of the damaged building or the rebuilding of the
damaged building. The two are linked together. The restoration of a building
which has not been damaged is not permitted under this article. It would be not
permissible, in my judgment, for a building owner, for example, to say that a
back extension of the house had been demolished by a bomb and that that permitted
him to restore a portico, perhaps in a large building two hundred yards away
which had been taken down two hundred years ago and he desired to put it back.
Plainly that would not be permissible.
So, in my
judgment, the learned judge came to a correct decision on this point of law,
and I would dismiss the appeal which has been made against it. The judge was
right to do as he did and return the case to the Secretary of State.
That is
sufficient to deal with this appeal, but Mr Rich, on behalf of the respondent
local authority, has invited us to deal with his respondent’s notice. That
arises in a different way. It arises as a result of what the Secretary of State
said in his decision letter, again in para 5. Immediately after the passage
which I have already cited, he continues:
It is,
however, considered that the question of the building’s usage at the time it
was damaged or demolished is not relevant.
That is an
absolutely correct statement, but in the result the Secretary of State went on
to consider what might be the effect of the deemed planning permission under
class XI. He said:
Section 33(2)
of the 1971 Act provides that where planning permission is granted for the
erection of a building, the grant of permission may specify the purposes for
which the building may be used; and that if no purpose is so specified, the
permission shall be construed as including permission to use the building for
the purpose for which it is designed. If it is concluded that the building
depicted in Photograph 1 still existed on the site during the war and sustained
war damage, and if it is further concluded that it can be rebuilt under the
general planning permission granted by virtue of the provisions of
Article 3 of, and Class XI of the first Schedule to, the [General Development
Order], then the provisions of section 33(2) of the 1971 Act would confer
permission to use it for the purpose for which it was designed.
In my
judgment, that part of the decision letter was obiter. It was not a
matter which called for any decision on the appeal to the Secretary of State.
What was said was that if it was right, then that should operate to prevent
this case falling within class XI because it was said that class XI permission,
if it applied, would have the effect of changing the use of the land. In my
judgment, I am satisfied that class XI cannot have that effect. Class XI is
confined to operational development. It says nothing about change of use or use
of the building.
For my part,
as it is quite unnecessary for the decision of the appeal, I think that the
Secretary of State fell into error in purporting to take any decision as to the
change of use of the building. Neither he nor any of the parties are bound by
that. I appreciate that when the matter was before the learned judge he in his
turn held that the appellants before him did not succeed on this point for the
reasons which were argued for Camden Borough Council before him. In my
judgment, so much of his judgment as deals with that is also obiter to
the question raised in this appeal and is of no binding effect. I do not find
it either necessary or desirable to consider on any hypothesis of what in fact
goes up on this site as to whether there has been a change of use or not. That
can be decided as and when necessary in the conventional way.
For these
reasons I would dismiss this appeal.
BINGHAM LJ: I entirely agree, and I add two observations only. First, the 1977
General Development Order is one of a succession of similar orders dating back
to 1945. All of these, in my judgment, reflect an understandable legislative
intention that those whose properties have suffered war damage should be free
to make good the damage even to the extent of replacement without planning
permission. It is, in my view, inconceivable that it could have been intended
to allow the fortuity of war damage to provide the authority for carrying out
development unrelated to that war damage and not otherwise permissible without
planning permission.
Second, even
if I had taken a different view on the effect of class XI, I am by no means
persuaded that the appellants could rely on section 33(2) of the 1971 Act to
authorise the use of new buildings for a purpose different from that for which
the buildings they were replacing had been used prior to demolition. The
question does not, however, arise, and, like my Lord, I accordingly express no
concluded opinion.
STUART-SMITH
LJ: I agree.
Appeal
dismissed with costs. Application for leave to appeal to the House of Lords
refused.
