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

For planning control in an English conservation area, the statutory definition of “building” ordinarily includes part of a building unless the statutory context requires otherwise. The definition applies to Town and Country Planning Act 1990, section 196D(3), so demolition of part of a gate or wall may constitute relevant demolition and may require planning permission. The question whether works amount to demolition or alteration remains one of fact and degree. A decision-maker may focus on the material removed rather than the whole structure. Where the works are properly characterised as purely demolition, there is no separate duty to decide whether they also constitute alteration. An asserted wider project will not prevent that conclusion where the evidence shows only removal and does not clearly establish continuing alteration works.

The claimant appealed under section 289 of the Town and Country Planning Act 1990 against an inspector’s decision dated 2 September 2016 upholding an enforcement notice issued by Bath and North East Somerset Council. The notice concerned removal of a pedestrian gate, lintel and approximately 2.5 metres of a wall in the Bath Conservation Area. The inspector treated the works as unauthorised demolition rather than alteration and required reinstatement.

The appeal challenged the interpretation of “building” and “demolition” under the statutory planning regime, the inspector’s focus on the removed section, her failure to consider alteration separately, and her treatment of the works as part of a wider alteration project.

1. Appeal dismissed. None of the grounds established an error of law in the inspector’s decision.
2. Section 336(1) of the Town and Country Planning Act 1990 provides that “building” includes any structure or erection and any part of a building. Parliament must be taken to have legislated against that definition when enacting section 196D(3). Nothing in section 196D or the wider provisions of the principal Act required a different interpretation. The demolition of part of a gate or wall in a conservation area was therefore relevant demolition and was not permitted development under the applicable statutory scheme.
3. The reasoning in Shimizu (UK) Ltd v Westminster City Council [1997] 1 WLR 168 did not require a consistent interpretation across listed buildings and conservation areas. That case concerned differently worded provisions in the listed-building regime. The conservation-area regime in England had subsequently been removed from that regime and placed within the planning regime.
4. Whether works amount to demolition or alteration is a matter of fact and degree. The inspector was entitled to focus on the gate, lintel and stonework removed rather than the wall as a whole. Her description of the works as falling wholly within demolition showed that she had not overlooked any separate aspect of alteration.
5. The inspector had considered the argument that the works formed part of a wider alteration project. Given the absence of work beyond removal and the lack of clarity in the evidence that work had stopped because of the enforcement notice, she was entitled to reject that argument. Consequential matters, if not agreed, were to be determined on written submissions.

The judgment states that the appeal was brought under section 289 of the Town and Country Planning Act 1990 from an inspector’s decision dated 2 September 2016 upholding the enforcement notice. The High Court dismissed the appeal.