Town and Country Planning Act 1971, section 246–Appeal against Secretary of State’s decision on enforcement notice–Alleged breach of planning control by carrying out development in the form of building operations without permission–Appellant sought to build two walls of his house on one occasion and the other two on another occasion–Whether this work came within Class 1, paragraph 1 of Schedule 1 to the Town and Country Planning General Development Order 1977 as being ‘the enlargement improvement or other alteration of a dwelling-house’ within the permitted measurements–Whether works constituted improvement or rebuilding depends on matters of fact and degree–Held, following Sainty v Minister of Housing and Local Government and Street v Essex County Council, that, as all that was left of the original building were some internal supporting walls, the roof and part of the floor, it was open to the Secretary of State to decide that the operations were not improvement but part of the construction of a new building–Appeal dismissed
This was an
appeal by Christopher Wren Larkin from a decision of the Secretary of State for
the Environment dismissing an appeal against an enforcement notice served by
Basildon District Council in respect of work done at The Bungalow, The Chase,
Little Burstead, Billericay, Essex.
B Payton
(instructed by Steggles Palmer) appeared on behalf of the appellant; the first
respondent, Basildon District Council, was not represented and took no part in
the proceedings; Simon Brown (instructed by the Treasury Solicitor) represented
the second respondent, the Secretary of State.
Giving
judgment, LORD WIDGERY CJ said: This is an appeal under section 246 of the Town
and Country Planning Act 1971 which is brought by one Christopher Wren Larkin
against the Basildon District Council and the Secretary of State for the
Environment. It is alleged that certain building works, to use a neutral term,
carried out by the appellant on land belonging to him required planning
permission and he did not obtain that permission before the works were carried
out.
We find the
nature of the works most conveniently by looking at the enforcement notice
itself, which followed shortly after the erection of the buildings. The
enforcement notice identifies the premises concerned as The Bungalow, The
Chase, Little Burstead, Billericay, Essex. It identifies the work done, as the
council would say in contravention of the Act, as ‘The carrying out on the said
land of building, engineering, mining or other operations, namely the
construction of new external walls in the position shown coloured green on the
attached plan.’ Then, finally, the
notice details that which has to be done in order to put right the breach of
planning control already alleged to have been committed and describes that work
as ‘Demolish all the new external walls referred to in Schedule 2 hereto.’
Behind those
rather cryptic expressions is the fact that this is another case in a short
line of cases in which land-owners have sought to carry out building operations
which did not require planning permission as compared with those which did. The
key to the possibility of this exercise being performed is Schedule 1, Class I,
paragraph 1 of the Town and Country Planning General Development Order 1977. That
provides:
The following
development is permitted under article 3 of this order. . . . Class I. . . . 1.
The enlargement improvement or other alteration of a dwelling-house so long as:
(a) the cubic content of the original dwelling-house (as ascertained by
external measurement) is not exceeded by more than 50 cubic metres or one-tenth
whichever is the greater, subject to a maximum of 115 cubic metres; (b) the
height of the building as so enlarged, altered or improved does not exceed the
height of the highest part of the roof of the original dwelling-house; (c) no
part of the building as so enlarged, altered or improved projects beyond the
forward-most part of any wall of the original dwelling-house which fronts on a
highway.
What the
appellant did in the activity in the fewest possible words was that he sought
to build two walls of his house on one occasion and then the other two on
another occasion, thereby, it was alleged, obtaining a rebuilding in effect of
the house without having to comply with the General Development Order.
There is of
course something in the point, if I may put it like that, because, as this
appellant found, when he applied to the planning authority for a determination
of whether his activities would comply with planning law or not, and when
initially he requested that information in regard to two walls, he having dealt
with the two walls and showing signs of proceeding with the other two walls,
applying for bye-law permission and things like that, the local authority, no
doubt in the kindness of their hearts, sent him a letter the effect of which
was to say ‘Do not assume that because you have got permission to build the
first two walls you will necessarily get permission to build the second,
because we think that the rebuilding of the second might well extend to make
the operation an operation of improvement.’
There are the
background terms of the statute, and before I turn to the facts themselves it
is worthwhile looking at one or two of the cases which have been decided on
this aspect of the matter. It is useful because the cases all seem to be one
way. They all seem to be creating a neat pattern which can easily be followed
by landowners.
I take first
the case of Sainty v Minister of Housing and Local Government
(1964) 15 P & CR 432. The headnote is brief:
The appellant
proposed to demolish two old cottages and to replace them with two new houses
of different design, on slightly different foundations.
Held, that
this proposal was not for the ‘enlargement, improvement or other alteration’ of
the cottages within Class I . . . and, accordingly, planning permission was
required.
The decision
is a decision of this court. Lord Parker CJ gave the leading judgment, and,
describing the facts of that case, he used the following terms:
What had happened
was this. The appellant was the owner of these cottages, Grovelands Cottages,
which were two aged and unsatisfactory cottages. In respect of one at least if
not both a closing order had been made. It was impossible to render them fit as
they were and the appellant desired to demolish them completely as his
application stated and erect on the site these two semi-detached houses of
different design. The court has in fact looked at the plans and it is quite
clear that the proposal involved a rebuilding, not even on the same foundations
but on slightly different foundations, of these new houses.
Then the
learned Lord Chief Justice went on to deal with the argument based upon this
matter by the landowner, the substance of it briefly being that the landowner
alleged that his activities came within the permitted activities because they
were an improvement of the houses in question.
In the
judgment on p 433 one finds the Lord Chief Justice commenting on the minister’s
view as expressed in the case itself. He says: ‘In his (ie the minister’s)
opinion, however, ClassI,1, of that order must refer to a dwelling-house which
is in existence when the operations mentioned in that class are being carried
out.’ In those few words lie the entire
key to the case law on this point.
That means
that, if the arrangements are so made that the house remained a dwelling-house
at all times and for all purposes, the fact that bits of it are pulled down and
rebuilt does not necessarily involve planning permission, because it can be
argued that is a mere improvement and no more. But whether or not a particular
activity is justified on that basis or not is entirely a question of fact and
degree. It is
about the circumstances in which the work was done. But the principle is clear
enough, as I hope I have made out.
On the next
page Lord Parker speculates on what might happen if a man in a house sought to
re-erect it by stages so as to embrace its entirety. He said:
In my
judgment, it may well be that it is possible to arrive at what in effect is a
new erection by stages, each stage of which can be said to be an improvement.
That certainly is not this case and I should imagine that it would be a case
which could very rarely occur. It would be difficult to think how it could be
done economically or over a period long enough to be able to say that each
stage was merely an improvement, and that the whole thing was not just a
rebuilding.
That principle
is to be seen also in another decision upon the Act, Street v Essex
County Council (1965) 193 EG 537. The observations of Lord Parker, who
again gave the leading judgment, on the minister’s letter in this case are as
follows:
The Minister
has considered your client’s claim that the works described in the enforcement
notice do not constitute development or do not require planning permission. He
notes that prior to the works of reconstruction being carried out, the original
bungalow, with the exception of two internal partition walls, had been
demolished down to foundation level. He is satisfied that the works described
in the enforcement notice constituted development within the meaning of section
12(1) of the Act, and they were not operations to which section 12(2)(a)
applied.
Lord Parker
goes on:
The argument
for the appellant was that what was done in this case did not for the purpose
of the Act constitute development Provided the design and some part, however
small, of the original structure remained, the operations could be said to be
works for the maintenance of the building, the court having to look at their
totality and the intention with which they were carried out.
A few lines
further on he says:
Whether the
works could fairly be said to amount to maintenance, or were properly called
reconstruction, must be a matter of fact and degree. In the circumstances the
minister was entitled to hold as a matter of fact that what took place was
reconstruction and, as reconstruction, it involved development.
Turning back
to the case before the court today and applying those principles as best one
can, the real question, as May J pointed out in the course of argument, is
whether the activities with which we are concerned did amount to improvement or
amounted to rebuilding. Whether or not they followed either of those categories
depends, in my judgment, almost entirely on matters of fact and degree.
The Secretary
of State made his decision upon this work, and I must conclude the judgment by
referring to what he said on the operations in our case. He said, quoting the
inspector:
None of the
external walls of the original building remain and new walls have been
constructed as part of one operation and are unlike the walls of the original
building; the construction of those walls, as distinct from the replacement of
one or two of them, are not works of maintenance, improvement or other
alteration of a building within the meaning of section 22 of the 1971 Act since
the original building has virtually ceased to exist; the construction of the
new walls consequently involves development. The building operation of which
the construction of the new external walls forms part amount to the
construction of a new dwelling; the construction of the new external walls is,
therefore, not development within the curtilage of a dwelling-house and,
consequently, is not permitted under Class I,1, of Schedule 1. . . .
A point was
made by counsel for the appellant that in that paragraph the inspector had made
an error which the Secretary of State continued, namely, by referring to
‘walls’ when he must have meant or should have meant ‘external walls.’ I am quite confident that that was a slip
which did not make any difference to the conclusion in this case, and I do not
think that the appellant can get pleasure and self-satisfaction from it.
All that now
remains, according to the Secretary of State, of the original building on the
site are some internal supporting walls and the roof and part of the floor.
Speaking for myself, I have no doubt that, those being the facts of the case,
it was fully open to the Secretary of State to say upon these facts that that
which was done was not the improvement of the dwelling-house but something
else, something else which did not qualify for exemption under the exception. I
would therefore dismiss the appeal.
MAY J agreed.
The appeal
was dismissed with costs. Leave to appeal to the Court of Appeal was refused.
