Town and country planning – Enforcement notice – Appeal – Local authority issuing enforcement notice for breach of planning control – Inspector appointed by respondent secretary of state dismissing appeal – Appellant appealing against court order upholding inspector’s decision – Whether inspector erring in law – Appeal dismissed
The appellant owned three former chicken sheds at Hoath Farm, Bekesbourne Lane, Canterbury that had permission for class B1 and B8 office use and approval for a change of use to residential. Substantial building works were carried out without planning permission. The interested party local authority issued an enforcement notice which stated that the erection of three new buildings constituted a breach of planning control and required the complete demolition of three new buildings whose construction had incorporated parts of the original buildings.The appellant appealed against the enforcement notice and the interested party’s refusal of planning permission for development on the same site. An inspector appointed by the respondent secretary of state dismissed the appeals.
The appellant made an application under section 288 of the Town and Country Planning Act 1990 and an appeal under section 289, challenging the inspector’s decisions. The appellant contended that the inspector had been wrong in law to conclude that there were three new buildings and a breach of planning control. She should have found that he had a valid fall-back position as the original sheds had permitted development rights and so not refused planning permission. The inspector, on finding that the notice requirement to make good the land was too vague, should have concluded that the notice as a whole was a nullity. The High Court dismissed the application and the appeal: see [2017] EWHC 2716 (Admin).
The appellant appealed. The issue was whether the inspector went wrong in her approach to appellant’s contention that the surviving parts of the original, lawfully erected buildings on the site could not properly be enforced against, and that the enforcement notice, if upheld, should therefore have been varied.
Held: The appeal was dismissed.
(1) The appellant’s arguments were based on the misconception that the inspector accepted that “lawful” parts of the original buildings remained on the site and could properly be distinguished from the new works of construction following the partial demolition of those original buildings. On a true understanding of the inspector’s findings and conclusions, she was clearly satisfied that the buildings now on the site were not new buildings and original buildings, but simply “new buildings” and she did not err in law. Taking all the inspector’s findings and conclusions together, it was clear that she was alive to the possible mischief of over-enforcement; and that she took care to satisfy herself that the council’s enforcement action was soundly based in fact and justified in law. The inspector had not made incomplete or erroneous findings of fact or ignored any relevant considerations or taken into account irrelevant considerations; nor was her exercise of judgment unreasonable in the “Wednesbury” sense, or otherwise unlawful: Arnold v Secretary of State for Communities and Local Government [2017] EWCA Civ 231; [2017] PLSCS 82 followed.
(2) The inspector was entitled to find that the buildings on the site were “new buildings” even though they were partly composed of what was left of the buildings that had stood there before. Depending on the works undertaken, an original building need not be totally, or near-totally, demolished for it to become a new building. A building constructed partly of new materials and partly of usable elements of previous structures on the site, after other elements of those previous structures had been removed through demolition, might in fact be a “new” building; or it might not. The facts and circumstances of every case would be different. But, in principle, the retention of some of the fabric of an original building did not preclude a finding by the decision-maker, as a matter of fact and degree, that the resulting building was physically a “new” building, and that the original building had ceased to exist. That, in effect, was what the inspector found here and she made no error of law. She was not compelled to find that because some elements of the original buildings had survived in the construction of the buildings now on the site, the buildings were not, and could not be, “new buildings”. The inspector correctly applied the relevant provisions of the statutory scheme to her determination of each ground of appeal against the enforcement notice, and her conclusions were consistent with relevant authority: Hibbitt v Secretary of State for Communities and Local Government [2016] EWHC 2853 (Admin); [2017] EGLR 6 followed.
(3) The inspector was not at fault in failing to consider the definition of “building” in section 336 of the 1990 Act, which included a “part” of a building. The inspector was considering whether, as a matter of fact, the buildings that had now been erected on the site were or were not “new buildings”, even though parts of the original buildings left in place after the works of demolition had been incorporated into those now constructed. For a structure or piece of structure to be “part of a building” there had to be in the first place a building of which it could be a part. If the buildings now on the site were, as the inspector found, “new buildings”, it followed that the remaining fabric of the original buildings was no longer part of those original buildings, but was now part of the new buildings themselves. Having found that the buildings were new buildings, constructed without planning permission, the inspector was not compelled to conclude that the remedy for the breach of planning control was anything less than complete demolition: Wyre Forest District Council v Secretary of State for the Environment [1990] 2 AC 357 distinguished.
(4) Such lawful use rights as had attached to the original buildings were lost when those buildings ceased to exist as buildings and “new buildings” replaced them so the requirement in the enforcement notice to demolish the buildings entirely did not deprive the appellant of any established lawful rights. There was, therefore, no breach of the “Mansi principle” that established rights should be safeguarded in enforcement action where that was still possible. On the facts as found by the inspector, that principle was simply not engaged.
Timothy Straker QC and Jonathan Powell (instructed by Russell-Cooke Solicitors) appeared for the appellant; Leon Glenister (instructed by the Government Legal Department) appeared for the respondent; the interested party did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read a transcript of Oates v Secretary of State for Communities and Local Government
