Williams v Secretary of State for Communities and Local Government & Anor

An appeal under section 289 is confined to points of law, not planning merits. The appellate court must respect an Inspector’s findings on fact and degree and must not recast a planning permission or enforcement notice by adding words that are not there. Planning documents require certainty and are construed from their apparent wording. Integrated demolition and construction may constitute separate planning activities. Where the breach is the erection of an unauthorised new building, demolition may be required, and the authority need not require construction of a replacement building. An appellant seeking an alternative remedy should put a properly developed proposal before the Inspector. Reasons are read fairly and straightforwardly, without forensic over-analysis.

These appeals arose from an enforcement notice issued after the owner of a barn constructed a building materially different from the development authorised by planning permission. The Inspector found that the original building had been substantially demolished and that a new building had been erected. He dismissed the enforcement appeal and required demolition.

The Administrative Court allowed the owner’s appeal under section 289, quashed the Inspector’s decision and remitted the matter for reconsideration. The Secretary of State and the local authority appealed. The owner cross-appealed on whether the specified breaches had occurred. The central issues were the limits of a section 289 appeal, the proper construction of the planning permission and enforcement notice, and whether demolition exceeded what was necessary to remedy the breach.

1. Disposition. The appeals by the Secretary of State and the Council were allowed. The cross-appeal was dismissed. The Deputy Judge’s order was set aside and the Inspector’s decision was restored.
2. Limits of the appeal. An appeal under section 289 of the Town and Country Planning Act 1990 is confined to points of law and does not permit a review of planning merits. The Deputy Judge impermissibly went behind unchallenged findings that the 2006 permission had not been implemented and that the completed building was materially different. Whether works amount to a conversion or a new building is a fact-sensitive question of fact and degree for the Inspector.
3. Construction of planning documents. The 2006 permission authorised alterations and conversion. Its apparent meaning could not be enlarged by relying on the absence of express restrictions on construction methods or sequence. The enforcement notice clearly alleged the erection of a new building. It had to be construed from its precise wording and within its four corners; reliance on necessary implication and factual background introduced impermissible uncertainty. See Slough Estates Ltd v Slough BC [1971] AC 958 and Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196.
4. Breach and remedy. Planning law may treat demolition and construction carried out as one physical process as separate activities. The demolition of the original barn did not itself require planning permission and was not the breach enforced. The Inspector was entitled to find that a new building had been erected. Even if demolition had formed part of the breach, section 173(6) did not require the Council to require construction of a replacement building.
5. Reasons and alternatives. The Inspector’s reasons were sufficient when read straightforwardly. In the absence of a ground (a) appeal, the Inspector was not required to search for alternative schemes. The alternatives had not been properly developed or put forward for determination. The Inspector therefore made no error of law in requiring demolition.

• Court of Appeal (Civil Division): Allowed the appeals, dismissed the cross-appeal, set aside the order below and restored the Inspector’s decision.
• Administrative Court: On a section 289 appeal, allowed the owner’s challenge, quashed the Inspector’s decision and remitted the matter for redetermination: [2012] EWHC 3466 (Admin).