Enforcement Notice — Repairs to building became reconstruction — At some point the works became development — “Matter of fact and degree” — Owner’s appeal dismissed, building to be demolished
This was an appeal by Mr Frederick John Street, of Gilmour Rise, Billericay, Essex, from a decision of the Minister of Housing and Local Government, dated October 9, 1964. By his decision the Minister upheld an enforcement notice dated September 18, 1963, served on the appellant by the Basildon Urban District Council as agents of the local planning authority, the Essex County Council, requiring demolition of a building erected on land at Park Villa, Windsor Road, Pitsea.
Mr George Dobry (instructed by Messrs Warren & Warren, agents for Messrs Rudd, Moorfoot & Davenport, of Westcliff-on-Sea) appeared for the appellant, and Mr A Fletcher (instructed by Messrs Sharpe, Pritchard & Co, agents for Mr A Hatt, clerk to the Basildon Council) represented the respondents.
Giving judgment, Lord Parker said that the original building at Park Villa was erected in the 1930’s. It and neighbouring buildings were of poor quality development. A demolition order was stayed on the basis of the appellant undertaking what were thought to be repairs in accordance with approval given by the bylaws. It was reasonably clear that the appellant started off with the idea of repairing the building. But he found it necessary in effect to demolish the existing building down at any rate to the damp course, and to construct what the planning authority said was a new building. An inspector who held an inquiry found that the original structure was reduced virtually to within a few inches from ordinary ground level. The work of demolition and rebuilding could only have been a continuing operation. In his letter of decision the Minister accepted the findings of the inspector and went on:
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) applies.
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 |page:539| the intention with which they were carried out.
He (his Lordship) entirely accepted that in looking at what was done one should consider it as all having been carried out in one operation, namely demolition followed immediately by reconstruction. But this seemed clearly a case where an owner began with the intention of repair or maintenance and, through no fault of his own, found that that intention had to be turned into an intention, in effect, to rebuild. 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. The appeal should therefore be dismissed.
MARSHALL and WIDGERY, JJ, agreed, and the appeal was accordingly dismissed with costs.
