Field v First Secretary of State & Anor

Demolition may constitute development for planning purposes where it amounts to a building, engineering or other operation. Whether it does so is ordinarily a question of fact. A planning permission may be begun by carrying out the development authorised by it, even where the works do not involve a specified operation under the statutory deeming provision. The provision identifies circumstances in which development is taken to have begun, but does not prescribe the only means by which it can begin. In determining whether a permission has been implemented, the decision-maker should consider the objective physical works and whether they were material. Subjective intention is generally irrelevant, subject to the possibility of exceptional cases involving accidental implementation by third parties.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash an Inspector’s decision dismissing an appeal against refusal of a lawful development certificate under section 192. The certificate concerned two detached bungalows authorised by outline planning permission granted in 1967.

The permission contained no commencement condition. Statutory provisions later deemed a condition to apply, requiring the development to begin by 31 March 1974. The existing cottages had been demolished between January 1969 and November 1970, but no further works had taken place. The central issues were whether demolition constituted development, whether it began the authorised bungalow scheme, and whether the statutory definition of specified operations was exhaustive.

1. Application allowed. The Inspector’s decision was quashed. The first defendant was ordered to pay the claimant’s agreed costs of £4,841.50.
2. The Inspector had found that demolition of the cottages formed part of the totality of works necessary to complete the bungalow scheme and that it was carried out by a builder as an operation normally undertaken by a builder. Applying the propositions in Cambridge City Council v Secretary of State for the Environment (1992) 3 PLR 4, the only reasonable conclusion was that the demolition constituted development under section 12 of the Town and Country Planning Act 1962. The 1967 permission expressly authorised demolition and erection of the bungalows.
3. The Inspector erred by treating the demolition’s possible motives as relevant. The proper inquiry was whether the former owner carried out the authorised, material works. The objective approach in Riordan Communications Ltd v South Buckinghamshire District Council [2001] 81 P&CR 85 was applicable. Subsequent owners should be able to rely on public planning records and physical evidence, without reconstructing the intentions of persons who carried out works many years earlier.
4. The argument that development could begin for the purposes of paragraph 21(b) of Schedule 24 to the Town and Country Planning Act 1971 only through a specified operation under section 43(2) was rejected. Section 43(1) provides a deeming rule. It does not exclude development beginning in other circumstances. Specified operations create a low threshold in common cases, but other development may be begun without one. That question is for the decision-maker as a matter of fact.
5. The court agreed with Ceredigion County Council v National Assembly for Wales and ED Harrison [2001] EWHC (Admin) 694 that demolition is not construction for section 43(2)(a). That decision did not determine whether demolition authorised by a planning permission could nevertheless begin the permitted development. On the facts here, it did.

The judgment records an Inspector’s decision letter dated 17 July 2003 dismissing the claimant’s statutory appeal against refusal of a lawful development certificate. The Administrative Court allowed the section 288 application and quashed that decision. Permission to appeal was granted on the section 43 issue, with 21 days allowed for lodging an appellant’s notice.