Magauran, R (on the application of) v The First Secretary of State & Ors

In planning judicial review, the fact that a building is locally listed does not itself prevent its demolition where the statutory permitted-development regime applies. For an ordinary dwellinghouse, demolition may generally proceed without a separate planning application, subject to any applicable article 4 direction and the statutory controls on listed buildings and conservation areas.

A planning inspector may treat lawful demolition as the practical consequence of a proposed development involving replacement construction. The inspector must assess the development plan and any material considerations, but need not assume that exceptional controls will be invoked where the local planning authority has not made, or indicated an intention to make, an article 4 direction.

The claimant sought judicial review of a planning inspector’s decision allowing an appeal against the refusal of permission for a block of ten flats at 25 Alexandra Road, Epsom, following demolition of an existing locally listed dwellinghouse.

The local planning authority had refused permission by reference to policy BE15 of the Epsom and Ewell District Wide Local Plan 2000, which sought to resist demolition of locally important buildings. The inspector concluded that the proposed flats would not harm the character and appearance of the area and that material considerations outweighed the policy.

The claimant alleged errors of law concerning the assumed demolition of the house, procedural unfairness because the issue had not been raised at the hearing, and misuse of a fallback position.

1. The claim was dismissed. The inspector had lawfully allowed the appeal and granted planning permission for the block of ten flats following demolition of the existing building.
2. Under Town and Country Planning Act 1990, section 54A, a planning determination must accord with the development plan unless material considerations indicate otherwise. Demolition is a building operation and therefore development under section 55(1A), but section 55(2)(g), together with the Town and Country Planning (Demolition—Description of Buildings) Direction 1995, removes specified demolitions from the statutory concept of development. The Town and Country Planning (General Permitted Development) Order 1995 also grants permission for demolition under article 3 and Schedule 2, paragraph 31.
3. The prior-approval procedure under Schedule 2 concerns the method of demolition and restoration of the site. It does not determine the principle of demolition. An article 4(1) direction, requiring the approval contemplated by article 5, may withdraw the permitted-development right, but the relevant policy indicates that such action is exceptional.
4. In the circumstances, the inspector was entitled to proceed on the basis that separate planning permission for demolition would not normally be required. The council had not made, or indicated that it intended to make, an article 4 direction. The inspector was therefore entitled to regard the possibility of lawful demolition before the application as relevant to the planning assessment, and had properly weighed policy BE15 against material considerations.
5. There was no procedural unfairness. The inspector was not required to raise the point at the hearing, particularly because the council had not advanced an article 4 case. The alleged fallback position was not a conventional fallback case of the type illustrated by Brentwood Borough Council v Secretary of State for the Environment and Gray; it was essentially a restatement of the unsuccessful primary challenge.
6. The claimant was ordered to pay the First Secretary of State’s costs, summarily assessed at £6,250, payable within 28 days.