Town and country planning – Enforcement notice – Repair – Local planning authority issuing claimants with enforcement notice for breach of planning regulations – Local authority pursuing claimants under section 179(1) and (2) of the Town and Country Planning Act 1990 for failure to comply with notice – Claimants raising statutory defence under section 179(3) – District judge concluding allegations made out and refusing to state a case for High Court – Claimants applying for judicial review – Whether word “repair” in enforcement notice encompassing demolishing and rebuilding walls in new/secondhand bricks – Application dismissed
The claimants, a company and its managing director, purchased a terraced residential property in the St John’s Grove conservation area in North London intending to renovate it and resell. In October 2014 render was applied to the exterior of the building and subsequently painted. Planning permission was not sought for that procedure. In March 2015, an application for retrospective planning permission was refused by the interested party local authority on the basis that the “proposed” works would have a detrimental impact on the visual appearance of the building and cause unacceptable harm to the character and appearance of the conservation area. An appeal against that refusal was dismissed.in October 2015. Before that latter date, on 2 July 2015, the interested party issued an enforcement notice requiring the claimants to remedy the breach by removing the concrete render from all elevations of the premises, including all waste materials therefrom and repairing any damage to the facing fabric of the building with materials to match the existing walls. That notice was not appealed and compliance was required by 13 October 2015.
The claimants were pursued for a failure to comply with the notice and in August 2016 informations were laid pursuant to section 179 (1) and (2) of the Town and Country Planning Act 1990 alleging that they had failed to comply with the remedial action. The claimants deployed the defence in section 179(3) of the 1990 Act contending that they had done everything that they could reasonably be expected to do to secure. They relied upon evidence from an expert in the maintenance and refurbishment of listed buildings to the effect that that the removal of the render would irreparably damage the bricks beneath necessitating the demolition and rebuilding of the entirety of the exterior walls. The district judge construed the word “repair” to include, in the context, the rebuilding of the front and rear walls of the property with replacement bricks. He concluded that the allegations were made out and the statutory defence failed but refused to state a case for the opinion of the High Court.
The claimants were granted permission to apply for judicial review on the basis that, because non-compliance could lead to criminal conviction, it was appropriate for the High Court to consider whether the enforcement notice could be complied with or if, because the works needed went beyond the scope of the word “repair”, the steps set out in the enforcement notice were insufficiently specific for the recipient to know what was required of him to achieve compliance.
Held: The application was dismissed.
(1) The narrow issue was whether the enforcement notice which required the claimants to repair the property could properly be understood to encompass demolition and rebuilding of the front and rear walls which had been rendered, particularly in light of the location of the property within a conservation area so that in normal circumstances such work would require planning permission. There was no definition of repairs within the scheme of the 1990 Act. That had to be because the draughtsman and Parliament considered it unnecessary for further definition to be provided. Repair was an ordinary English word. Its meaning was context specific. In the context of an enforcement notice issued because of a breach of planning procedure, common sense indicated that the only repair that would satisfy the notice would be one that made good the activity that had led to the breach. In the claimants’ situation they had applied render to the entirety of the front and rear elevations of a terraced Victorian house. In order to repair that breach the entirety of those two exterior walls might be involved.
(2) The terms of the notice itself made clear that the repair envisaged by the planning authority, should damage be caused to the facing fabric of the building while the render was being removed, extended to employing materials to match the existing walls. In short, as the breach was over all of both walls, so the repair might have involved all of the two walls in question. In the context of the claimants’ case even if the repair amounted to demolition and rebuilding of those two walls that did not prevent it being a repair. Equally, it was for the claimants themselves to comply with the notice and its requirements were clear. Even if the expert report had been obtained within the time limit for an appeal against the notice it was hard to see how the claimants could have succeeded in challenging the notice on the basis that it was too onerous. Again, the question was a simple one; as the breach encompassed the total exterior elevations the remedy for the breach had to encompass the same area. Accordingly, in context, the terms of the enforcement notice were crystal clear. The District Judge made no error in finding that “repair” encompassed rebuilding two walls, if necessary. There was no lack of specificity.
Melissa Murphy (instructed by Sonn Macmillan Walker) appeared for the claimant; Richard Drabble QC (instructed by Islington London Borough Council) appeared for the Defendants.
Eileen O’Grady, barrister
Click here to read transcript: Hargrave House Ltd and another v Highbury Corner Magistrates Court
