Arnold v Secretary of State for Communities and Local Government

Whether works constitute permitted enlargement or the replacement of a dwelling-house is a question of fact and degree. Permitted development rights depend on the continuing existence of the parent dwelling-house. Starting works does not necessarily crystallise those rights; if the parent dwelling-house is lost before completion, the rights may be lost with it. A restriction referring to a wall forming a side elevation of the original dwelling-house continues to apply even if that wall is demolished. On an enforcement appeal, permission may be granted only for the whole or a part of the matters alleged in the notice. An inspector should consider an obvious alternative which would overcome the planning harm, but is not required to devise solutions for an appellant. Development control and consequential demolition may be proportionate interference with qualified Convention rights.

The claim challenged an inspector’s dismissal of appeals against an enforcement notice concerning the substantial rebuilding of a dwelling in the Green Belt and an Area of Outstanding Natural Beauty. The appellants argued that the works were staged enlargement, improvement, alteration or repair under the permitted development regime; that the relevant restriction in the Town and Country Planning (General Permitted Development) Order 1995 did not apply; that alternative reduced schemes should have been considered; and that demolition was disproportionate under Article 8 and Article 1 of the First Protocol.

The inspector had allowed only the appeal for additional time to comply, extending the period from six to nine months. The central issues were whether a new dwelling had been erected, whether permitted development rights survived the demolition, whether the alternative schemes fell within the statutory power to grant permission for part of the breach, and whether the decision was proportionate.

1. Ground 1. The inspector was entitled to find, as a matter of fact and degree, that the original dwelling-house had been demolished and replaced by a new dwelling. The limited remnants of wall, together with the cumulative demolition and construction, supported that conclusion. The principles in Sainty v Minister of Housing and Local Government, 15 P & CR 432, CW Larkin v Basildon District Council, [1980] JPL 407, and Hewlett v Secretary of State, [1985] JPL 404, required the parent dwelling-house to remain in existence during the relevant works.
2. The early excavation did not crystallise the appellants’ permitted development rights. Following R (oao Watts) v Secretary of State for Environment, Transport and the Regions, [2002] EWHC 993, the rights were not fixed merely by starting works. If the parent development was lost before completion, the dependent rights were lost. Orange PCS, R (on the application of) v Islington Borough Council, [2006] EWCA Civ 157, concerned a different issue and did not assist.
3. Ground 2. The restriction in Schedule 2 Part 1 Class A.1(h) applied to any wall forming a side elevation of the original dwelling-house, including the wall identified as A. Demolition of that wall did not remove the restriction. The inspector’s construction was correct.
4. Ground 3. Under section 177(1)(a), the relevant question was whether an alternative scheme was part of the matters constituting the breach, not whether it was materially different. The inspector used unfortunate language but read as a whole his decision applied the correct approach. He considered whether any acceptable and severable part of the development could be permitted and whether there was an obvious alternative overcoming the planning harm. The alternatives were not such solutions.
5. Ground 4. Articles 8 and 1 of the First Protocol were engaged, but the rights were qualified. The enforcement of development control, with an extended period to identify a suitable dwelling, was proportionate to the environmental harm and did not prevent construction of a well-designed dwelling complying with Green Belt constraints.
6. The claim was dismissed. The claimant was ordered to pay the defendant’s costs, subject to detailed assessment if not agreed.

This was a first-instance judicial review claim challenging the inspector’s decision on enforcement appeals. The inspector had allowed the appeal under ground (g) only by extending the compliance period from six to nine months. The High Court dismissed the claim.