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

The retention and incorporation of fabric from an existing building does not prevent a planning decision-maker from finding, as a matter of fact and degree, that the resulting structure is a new building and that the original building has ceased to exist.

Lawful use rights attached to an original building do not subsist after that building has been replaced by an unlawfully erected new building. An enforcement notice may therefore require complete demolition where no lawful part remains independently identifiable and no less extensive remedy would correct the breach. The principle protecting established lawful rights from over-enforcement is then not engaged.

The appellant had undertaken extensive works to three former agricultural buildings. An enforcement notice alleged the unauthorised erection of three new residential buildings and required their complete demolition. A planning inspector found that the remaining fabric of the original buildings had been fully incorporated into new buildings and dismissed the material grounds of appeal against the notice.

H.H.J. Waksman Q.C., sitting as a deputy judge of the High Court, dismissed challenges under sections 288 and 289 of the Town and Country Planning Act 1990: [2017] EWHC 2716 (Admin). The central issue in the Court of Appeal was whether the inspector had unlawfully permitted over-enforcement by failing to preserve parts of the original buildings and the lawful rights said to attach to them.

1. Appeals dismissed. The inspector was entitled to find, as a matter of fact and evaluative planning judgment, that the structures were three new buildings. The original structures had been largely demolished, and their surviving fabric had been fully integrated into the new structures. Retaining some old fabric did not compel a finding that the original buildings continued to exist, even in part.

2. Whether works produce a new building depends on substance rather than an artificial dividing line at total demolition. The question is one of fact and degree for the planning decision-maker. The inspector’s reliance on Hibbitt v Secretary of State for Communities and Local Government and Rushcliffe Borough Council [2016] EWHC 2853 (Admin) was appropriate. Her findings disclosed no mistake of fact, failure to consider a relevant matter, irrelevant consideration, misdirection or Wednesbury unreasonableness.

3. The inspector’s decision letter had to be read fairly, as a whole and in context. Her conclusions on the appeals under grounds (a), (b), (c) and (f) of section 174(2) of the Town and Country Planning Act 1990 were interrelated. Read together, they showed that she had addressed the risk of over-enforcement.

4. The statutory definition of “building” in section 336, which includes part of a building, did not determine whether the completed structures were new buildings. Once the inspector found that the original buildings had ceased to exist, their surviving materials were parts of the new buildings rather than independently existing parts of the originals.

5. The prior approval for a change of use applied only to the former buildings. It could not be implemented after those buildings ceased to exist. The subsequent residential use occurred in unlawfully erected new buildings and did not preserve the former lawful use rights.

6. The Mansi principle protects existing lawful rights from over-enforcement, but it was not engaged. No lawful rights subsisted in the new buildings, and nothing remained upon which the principle could operate. Section 57(4) did not preserve a use right after the buildings capable of exercising it had ceased to exist.

7. The inspector was not compelled to require anything less than complete demolition. The proposed alternative schedule lacked sufficient precision, and no obvious lesser solution would remedy the breach and identified harm. The demolition requirement was therefore within the statutory purpose and was not excessive.

1. Court of Appeal (Civil Division): The appeals were dismissed unanimously. The court upheld the inspector’s finding that the structures were new buildings and the conclusion that complete demolition was not over-enforcement: [2018] EWCA Civ 2229.
2. High Court, Administrative Court, Planning Court: H.H.J. Waksman Q.C., sitting as a deputy judge, dismissed the application under section 288 and appeal under section 289 of the Town and Country Planning Act 1990: [2017] EWHC 2716 (Admin).
3. Planning inspector: The inspector dismissed the material appeals against the enforcement notice and the refusal of planning permission. She varied the notice by deleting the requirement to make good the land and extending the compliance period from six to nine months.