Article first appeared in July 2016 NAPE newsletter.
What comes down must go up!
The laws of gravity are no match for the laws of planning enforcement it seems.
In 2015, the Israeli owners of the Carlton Tavern demolished the locally important pub, shortly before it was to be listed, before it could become an “asset of community value” and after being denied permission to develop the site. Staff were given no warning, being told to take the day off for a stock take.
Westminster City Council injuncted the demolition and slapped an enforcement notice on what was left of the property. The breach alleged was the demolition of the building. The steps required that the developer rebuild a facsimile of the building. The owners appealed, a 5 day inquiry was held and the inspector delivered his decision on 8 July.
Now it might be thought that the interesting thing about this case would be that the steps required rebuilding of the pub. In fact, the ground (f) appeal merited a single scant and somewhat confused paragraph in the decision. The purpose of the notice was to remedy the breach of planning control, yet the inspector looked at whether the steps went beyond what was necessary to remedy the harm, rather than the breach. Thankfully, he concluded that they were not excessive, presumably on either test. It seems to be a given that the notice could justifiably require rebuilding as a step.
The more interesting thing about the case is the level of detail that had to go into the enforcement notice in order for it to be upheld and what this might mean for other enforcement actions.
The appellant appealed on grounds (a), (f) and (g) but also sought to challenge the validity of the notice.
The enforcement notice in this case contained some 126 pages, most of which comprised a schedule of photos and text descriptions and all the floor plans and elevation drawings the council could cobble together to demonstrate the layout and condition of the building pre-demolition. The steps of the notice required the facsimile rebuild to be in conformity with these photos etc. Contrast this to the usual bald statement in enforcement notices requiring an owner simply to “reinstate the building to its pre-breach condition”. Yet still the appellant claimed that the notice was too imprecise to follow and should therefore be quashed.
Fortunately, the inspector threw out that aspect of the appeal but it should be a warning; a requirement to reinstate must be precise.
Related to this was a point taken on what “facsimile” meant and the extent to which, if something was unknown or couldn’t be replicated, a requirement to rebuild an exact “facsimile” of the existing building would be too imprecise. Fortunately, the inspector came to a reasonable view that the facsimile requirement related only to the aspects that could be determined from the photos. The building was to be more a replica than an exact facsimile. Again, precision is key.
There are, of course, two routes to precision. One is to provide lots of detail. The other is to provide none and simply require reinstatement to pre-breach condition. It seems the inspector at one point considered amending the notice to the latter. On balance, more detail is good, if only for the poor direct action contractor who has to implement the notice when the owner fails to do so!
The inspector seems to have been swayed by the fact that some of the building still existed, meaning that some elements of the layout could be physically discerned. This vindicated the council’s decision to injunct the demolition before it was complete.
There was a ground (a) appeal so the inspector was required to consider granting planning permission. The ground (a) appeal is a request for permission for the matters set out in the enforcement notice, ie the demolition. So the inspector considered at length the heritage value of the building before and after demolition. But he also considered heritage value after its potential reconstruction. And the value of a proposed scheme for redevelopment. It is difficult to see how consideration of the scheme for redevelopment had any place in the enforcement part of the inquiry. But even his considering the rebuilt pub seems a strange decision in the context of an application for permission for demolition alone.
The new government requirement to consider intentional unauthorised development as a material factor in coming to a decision was briefly discussed. But the inspector found that it did not have retrospective effect and so was of no help to him in this case. We will have to wait a little longer for a concrete example of that requirement in practice.
There was also an appeal against the refusal to grant permission for the proposed redevelopment. Perhaps unsurprisingly, given the way he approached the ground (a) enforcement appeal, the inspector refused the planning appeal.
It is not yet known whether the developer will appeal the decision. What came down has been ordered to go back up again but the legal proceedings may hold it down for a while yet.