Samuel Smith Old Brewery (Tadcaster), R (on the application of) v Redcar and Cleveland Borough Council

A local authority’s emergency power to remove danger under section 78 of the Building Act 1984 does not disapply ordinary planning controls. Where the necessary works constitute development, planning permission remains required, including for demolition of an unlisted building in a conservation area.

The absence of prior planning permission does not make the exercise of section 78 ultra vires. The authority may rely on the statutory defence available for urgently necessary demolition, and planning permission may be sought retrospectively.

The section 78 threshold requires immediate and necessary action. The authority must consider the available evidence and whether lesser measures would remove the danger. On the evidence, demolition of both buildings was a lawful and rational response to serious risks of collapse.

The claimant, owner of a hotel adjoining a council-owned former chapel and school house in a conservation area, challenged the defendant’s decision to demolish the buildings under section 78 of the Building Act 1984 without planning permission.

Ground 1 alleged that the decision was contrary to sections 57 and 196D of the Town and Country Planning Act 1990. Ground 2 alleged that the defendant had not lawfully assessed whether total demolition was necessary, or whether temporary or partial works would suffice.

The central issues were whether section 78 created an exemption from planning control and whether the defendant had lawfully exercised the emergency power.

1. Ground 1 succeeded. Section 78 of the Building Act 1984 does not abrogate the controls in the Town and Country Planning Act 1990. A local authority acting under section 78 must obtain planning permission where the proposed steps constitute development. Demolition of the unlisted buildings in the conservation area therefore required permission.
2. The absence of permission did not mean that the defendant acted outside section 78. The purpose of that provision is to empower a local authority to enter and undertake necessary works on another person’s land. It remains meaningful even though planning control applies. The statutory defence in section 196D(4) was relevant where urgent demolition left no time to obtain permission, and permission could be sought after the works. Section 78 also supplied a lawful excuse for criminal damage and section 95 authorised entry.
3. The different wording of sections 77(3), 78 and 79(5) did not establish a planning exemption. Sections 77(3) and 79(5) were directed principally to avoiding doubt about special controls for listed buildings and buildings in conservation areas. They did not imply that the basic planning requirement in section 57 was displaced. The post-2013 abolition of conservation area consent reinforced that conclusion.
4. Ground 2 failed. The defendant had obtained sufficiently detailed and independently prepared structural evidence. The reports identified serious deterioration, existing collapse, danger to pedestrians and adjoining property, and the impracticability and risks of repair or temporary support. The defendant was entitled to conclude that demolition of both structures was necessary and to act immediately under section 78. The Tameside duty to acquaint itself with relevant information was satisfied.
5. The appropriate relief was a declaration, rather than quashing the decision. The judicial review succeeded on ground 1 to the extent explained above.