In Williams v Secretary of State for Communities and Local Government [2-12] EWHC 3466, the appellant had the benefit of a planning permission for “alteration, conversion and a roof extension” to an agricultural barn, which he intended to use to provide a livery operation.
The local planning authority (LPA) took the view that he had not carried out the works in accordance with the approved plans, and issued an enforcement notice under section 172 of the Town and Country Planning Act 1990 requiring demolition of the resulting building. It also refused the appellant’s application for retrospective planning permission for the building. The appellant appealed in both respects to the Secretary of State. The inspector dismissed both appeals, and the appellant then appealed to the High Court.
The appellant’s principal concern was that if he were required to demolish the building, he would be left with a vacant space on his land that he would not be entitled to build on without planning permission for an altogether new building. This would not be forthcoming, given that his land was situated in both the Green Belt and an AONB. He contended that the inspector’s decision to uphold the requirement in the enforcement notice to demolish the building was based on errors of law.
The court, while accepting that the appellant was in breach of planning control, allowed the appeal on the section 174(2)(f) ground namely that the steps required by the enforcement notice to be taken exceeded what was necessary to remedy the breach of planning control. It held that the inspector had erred in law because he had simply accepted the LPA’s argument that the only way that the breach could be remedied was by demolition of the building. In so doing, he had wrongly concluded that the remedy of altering the building so that it conformed with the planning permission was neither available or appropriate.
The judge pointed out that the legislation spelt out the types of remedial action that could be ordered. These measures were not set out in any order of preference, but the LPA had to choose the remedial measure that was the least onerous one that could reasonably remedy the breach complained of. Demolition was, therefore, a last resort that would only be appropriate where the breach could not be remedied by alteration, replacement or the retrospective grant of planning permission.
John Martin
