Town and country planning – Planning permission – Demolition – Claimant applying for judicial review of decision of defendant local authority to demolish property under section 78 of Building Act 1984 – Whether section 78 abrogating need to obtain planning permission otherwise required in order to undertake necessary steps – Whether defendant lawfully applying section 78 – Application granted in part
The defendant owned the former Arlington Chapel and School House in Saltburn-by-the-Sea, Yorkshire, which was within the Loftus Conservation Area. The claimant was the owner of the Arlington Hotel, which was immediately adjacent to the property and shared a party wall with it.
In November 2021, the defendant made a planning application which proposed the demolition of the property. The application was supported by a structural commentary and a planning and heritage statement prepared by the defendant which concluded that measures to repair/rectify the structural defects would not be economically viable.
The claimant objected to the application which was withdrawn by the defendant in December 2021. In November 2022, the defendant informed the claimant of its intention to demolish the property under section 78 of the Building Act 1984 on the basis that two independent structural assessments had confirmed the derelict state of the property and the risk of collapse. The claimant objected to the demolition proposal but, in December 2022, the claimant became aware that contractors appeared to be commencing demolition works.
The claimant applied for judicial review of the decision to demolish the property contending, amongst other things, that the defendant’s course of action was ultra vires, since it was contrary to section 57 (planning permission required for development) and section 196D (offence of failing to obtain planning permission for demolition of unlisted etc buildings in conservation areas in England) of the Town and Country Planning Act 1990.
Held: The application was granted in part.
(1) Sections 77 and 78 of the 1984 Act gave local authorities power to deal with buildings or structures which were a danger to the public. Under section 77, if it appeared to a local authority that a building or structure was in such a condition as to be dangerous, the authority might apply to a magistrates’ court for an order requiring the owner to carry out works to obviate the danger or demolish the building.
Section 78 gave a local authority power to take steps to deal with a building or structure which was in a dangerous state, such that immediate action was needed to remove the danger. Section 79 concerned ruinous and dilapidated buildings and neglected sites and enabled a local authority, by notice, to require the owner to execute works of repair, restoration or demolition.
The central issue was whether section 78 abrogated the need to obtain planning permission, where that would otherwise be required in order to undertake the necessary steps to demolish. The fact that the legislation was intended to operate as a comprehensive code was a matter which the defendant needed to overcome if its view of section 78 was to prevail: Hillside Parks Ltd v Snowdonia National Park Authority [2022] UKSC 30; [2022] PLSCS 177 considered.
(2) Parliament inserted section 77(3) and section 79(5), to clearly show that those sections had effect subject to the enactments concerning listed buildings and buildings in conservation areas. There was no suggestion that, by inserting those provisions, parliament was intending that such orders and notices would exempt their recipients from the need to obtain planning permission for development. Parliament’s concern was with the special importance of listed buildings and buildings in conservation areas, bearing in mind that it was in the case of such buildings that sections 77 and 79 were likely to be most deployed by local authorities.
Part of the legislative thinking behind sections 77(3) and 79(5) was that sections 77 and 79 involved a command from a court or local authority to do something which might nevertheless also require statutory authorisation if it was to be done lawfully. In contrast, section 78 was required to allow the local authority to carry out the necessary works on the land of another person. Accordingly, the legislature would not have seen the need to insert anything along the lines of section 77(3) or 79(5) in section 78. In the case of section 78, there was no reason to assume that the creation of the power would confer upon its recipient any exemption from the town and country planning legislation. The purpose of section 78 was to confer upon a local authority the power to undertake works on the property of another. As such, section 78 did not lose its meaning if it was read as subject to the planning legislation.
(3) The pre-condition in section 78(1)(a) was the same as in section 77(1); namely, that the building etc was in such a state as to be dangerous. Although section 78(1)(b) contained the additional element that “immediate action should be taken to remove the danger”, there was nothing in section 77 which prevented a local authority from having recourse to that section, even where the need for action was immediate. Although there was no bright line of demarcation between section 77 and section 78, the recipient of a section 77 order from the magistrates’ court still had to secure planning permission to demolish a listed building or a building in a conservation area: Swindon Borough Council v Forefront Estates Ltd [2012] EWHC 231 (TCC) considered.
Section 78 did not abrogate the controls in the town and country planning legislation, including the requirement to obtain planning permission where that was required in respect of the steps to be taken by a local authority acting under section 78; in this case, the demolition of an unlisted building in a conservation area.
However, the fact that planning permission was required, but not obtained, by the defendant before commencing demolition of the property did not mean the defendant acted outside the powers of section 78. To hold otherwise would place a local authority, which invoked section 78 to carry out work on the property of a third party, in a significantly worse position than that of the owner of the property.
(4) Given the impossibility of undertaking reinstatement without significant risk, the defendant was entitled to reach the conclusion that the steps which were necessary to remove the dangers posed by both the chapel and the school house were their demolition. In the light of the reports and given the likely consequences of the impending winter weather, the defendant was entitled to take immediate action pursuant to section 78.
Victoria Hutton (instructed by Pinsent Masons LLP) appeared for the claimant; Philip Robson (instructed by Redcar and Cleveland Borough Council Legal Services) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of Samuel Smith Old Brewery v Redcar and Cleveland Borough Council
