Williams v The Secretary of State for Communities And Local Government & Anor

Where a planning permission authorises the alteration, extension and re-use of an existing building, it may permit substantial demolition and reconstruction unless the permission expressly requires particular structural elements to be retained. The operative requirement is compliance with the approved plans and conditions. Where unauthorised departures produce a non-conforming building, the enforcement authority must consider the least onerous effective remedy. Alteration or rebuilding to secure compliance should be preferred to demolition where physically practicable. Demolition is a last resort and is justified only where lesser remedial measures cannot remedy the breach.

The claimant appealed against an Inspector’s confirmation of an enforcement notice requiring demolition of a building constructed while attempting to implement a 2006 planning permission for alterations, conversion, roof extension and re-use of an agricultural barn as a livery facility.

The Inspector treated the works as the demolition of the original barn and construction of an unauthorised new building. He rejected alteration as a remedy, partly because the resulting building was not a conversion and retrospective permission for it had been refused under Green Belt policies. The central issues were the true scope of the 2006 permission, the nature of the breach, the adequacy of the enforcement notice and whether alteration or rebuilding could remedy the breach.

1. Appeal allowed and remitted. The Inspector erred in law by treating demolition as the only available remedy and failing properly to consider alteration or rebuilding of the existing structure so that it complied with the 2006 permission. The appeal was remitted to the Secretary of State for reconsideration of ground (f).
2. The 2006 permission did not require the retention of any particular part of the old barn, prescribe the construction method or require a conventional conversion. It authorised a composite development involving alterations, conversion, extension and re-use. The claimant could use new materials, strengthen or replace the steelwork and, if desired, demolish and reconstruct the barn, provided the completed building was a replica of the approved scheme and complied with the conditions.
3. The old barn had not been demolished as a separate operation. The removal and reconstruction works formed one continuous development operation. Nevertheless, the material departures from the approved plans constituted breaches of planning control. Describing the resulting development as a new building was a useful description of the cumulative non-conformities, rather than a separate breach disconnected from the 2006 permission.
4. The enforcement notice was not defective merely because it did not refer expressly to demolition of the old barn. However, it should have stated more precisely that the new building resulted from substantial changes to its design and external appearance, so that it did not accord with the approved plans. The Inspector’s failure to recognise that the notice covered breaches connected with the 2006 permission led to a material error.
5. Under Town and Country Planning Act 1990, the authority had to specify steps reasonably required to remedy each breach. Alteration, replacement, retrospective permission and demolition were not arranged in a statutory hierarchy, but the authority had to select the least onerous effective remedy. Demolition was a last resort. The new building could readily be altered to conform to the approved plans, unless that remedy proved physically impossible or impracticable.
6. The claimant could seek permission for alteration or rebuilding that produced a compliant building, or an agreed variant, but could not use the remedial process to obtain a substantial variation of the approved development.

• Inspector: On 25 February 2010, dismissed the appeals against the enforcement notice and refusal of retrospective planning permission, confirming demolition subject to an inconsequential amendment.
• High Court (Administrative Court): Permission to appeal was granted by Lindblom J on 4 October 2011. The appeal was allowed and remitted to the Secretary of State for reconsideration of ground (f).