Arnold v Secretary of State for Communities and Local Government

I have been presented with a whole raft of different plans and drawings. They demonstrate that the design of house the Arnolds were seeking to create evolved over time with numerous changes. Having said that although there were different stages of construction the main builder (Mr Brooks) explained that there was only one short break (around the end of December 2011 to early January 2012) in the building work. I therefore agree with the Council's submission that the stages were all part of one single building project that was being implemented with no significant gaps between the stages.

The Mr Arnold's (sic) evidence explains why they did not wish to pursue the development as shown on the plans that accompanied the LDCs or to completely demolish the house and start from scratch. A particular concern was that the width of the front extension shown on the LDC plans, following that of the existing front projection, which was felt to be too narrow and "would not achieve the goal of improving the flow of the home". Consequently consideration was given to widening this element. An informal view of whether this could be achieved by demolishing the side (west-facing wall) of the existing front projection was sought by the appellant's agent at that time (Jayne Wunderlich). The Council's response in an e-mail from Katie Williams dated 17 February 2011 was that if the side wall was first demolished it would not be treated as an original wall in any LDC application. I will come back to this point below but it is clear that this was only an informal view and not one which had the backing of a LDC.

The drawings that emerged as a consequence of these deliberations appear to be those of architect Ilse Kerr. She did not give evidence but states in a letter dated 2 August 2013 that she is a South African who knows the Arnolds personally and was involved in the Blackheath Cottage project from July 2011 until March 2012 when she went to join her family who were relocating to Australia. The plans, dated 26 September 2011, show a single storey rear extension of 4m deep and a 3 storey front extension of 6.85m wide projecting some considerable distance from the existing front wall. These plans differ materially from what was shown on those that supported the LDC. As well as the increase in width from 4.85m the length of the projection differs at basement and first floor levels.

There is some uncertainty as to which plans were being followed when the groundworks and foundation construction commenced on 19 September 2011 or the building works were started by Mr Brooks on 26 September 2011. Mr Brooks' oral evidence was vague on this matter. He said he did not check whether planning permission had been obtained for the building works he undertook – his normal practice. He said at one point that he only had footprint drawings to work to which show the majority of the existing walls retained but no elevations. However later in cross-examination he referred to seeing elevations before he started the project but could not recall when he was given these. This seems odd as it is apparent that Ms Kerr's Sketches 1 and 3 (26/09/11) show only floor plans and sections and no elevations. I therefore consider his evidence is unreliable in this respect as he could not stipulate what drawings (floor plans and/or elevations) he was building to.

Notwithstanding the lack of clarity in Mr Brooks' evidence, I have noted the comments in the statement of Mr Walker a structural engineer and director of AND Designs Ltd. This company was commissioned to provide the engineering solutions for the development that has taken place – the quotation letter being dated 1 August 2011. At paragraphs 6 and 7 of his statement he says "We received drawings for the sub-structure and refurbishment of the existing building from Ilse Kerr Architects". "We performed the calculations and structural designs based on the IK Arch drawings and in conjunction with Mr Arnold's conversations". These calculations and floor plan extracts have been provided and show the majority of the walls of the existing house retained but with new foundations to support the long front projection, which is partly cut into the ground.

What is curious is that where there are dates on the calculation sheets they are from October 2011 and that on the main basement plan is "Nov 11". So when the groundworks and foundation construction began in late September 2011 these plans and calculations would not have been in existence. Nevertheless, it seems likely that once the front extension had been demolished and the excavations for the new extensions had been undertaken that the engineering solution based on Ms Kerr's plans was the scheme being followed at least at the initial stages of construction. The Council do not demur from this conclusion but rightly point out that this scheme differed materially from what was lawful by virtue of the LDC for the front extension. The submission for the appellants is that this was the case but that the alternative scheme being pursued was also PD by virtue of the terms of the GPDO. This is a matter to address under ground (c).

I now set out the various stages of engineering works and construction that occurred based on the evidence before me and the timeline provided:

• Excavation of the front and rear extensions commenced on 26/09/11;

• The Arnolds move out into rented accommodation on 27/09/11 having already packed house contents into a storage container brought to the site;

• Stripping out of all internal fixtures and fittings (plumbing and electrics) within the house and demolition of the conservatory attached to east elevation on 28/09/11 and 10/10/11. Mr Arnold confirmed that everything went bar the walls, floors and ceilings;

• Scaffolding erected between 30/09/11 and 05/10/11 with the stripping of roof envelope (tiles, felt, battens) occurring from 03/10/11 to 12/10/11;

• Removal of the roof trusses over the eastern part of the house from 13-18/10/11; Mr Arnold said originally only the southern element was intended for removal but as this was providing a counter-balance for the northern (rear) element in terms of loading this needed to be removed as well;

• Demolition of the front extension walls in their entirety commencing on 21/10/11;

• Removal of the roof trusses over the western wing between 31/10/11 and 04/11/11 – the Arnolds decided this was necessary having received advice from the engineer concerning the structural failings and weaknesses in the existing roof frame;

• Discovery by bricklayer (Mr Edgington) (date not specified) that the first floor brickwork is constructed of inferior 'rat trap' bond with the recommendation that this be repaired or rebuilt. Also deficiencies in the length of the lintels to the ground floor openings;

• The Arnolds take the decision to demolish all the walls internal floors and ceilings save for the walls that remained which were underpinned by 11/11/11. This took place through November and early December with steel girders installed on between 23 and 25 November to support the retained walls and provide a frame for the new building work;

• By 14/12/11 all that remained of the original fabric was that shown in Mr Payne's photographs of that date;

• Subsequently any remains of the original floor slabs were removed and new concrete slabs laid. The new walls, roof frame, dormers and fenestration were installed thereafter."

"It is common ground based on the evidence of witnesses from the main parties that the only elements of the original extended dwelling that remain are parts of the walls of the western wing. These can be generally described, based on the photographs supplied, as part of the south facing wall (to the top of ground floor windows), the two storey west facing gable (partly tile-hung) and a small section of supporting 'return' wall on the northern elevation. The rest of the existing dwelling, including all the slabs, footings and foundations other than those remaining beneath the walls of 'original' building, are new building works that have taken place since work commenced in September 2011."

"Without planning permission operational development comprising of the erection of a building to be used as a dwellinghouse in the (sic) as shown hatched in black on the attached plan."

The submission for the appellants is that although very little of the original fabric remained by 14/12/11 that is not the critical point as regard has to be had to the staged nature of the development – which it is claimed proceeded on a lawful basis as it was either not development, having regard to s55(2)(a) of the Act, or PD by virtue of the rights conveyed by the GPDO – and to the intentions of the appellants.

Dealing with the latter point I do not accept that the intentions of the Arnolds is a critical determining factor when considering a matter of law. They may well have intended a whole range of things and indeed it is manifestly clear from their own evidence that these intentions changed and were modified as the development progressed. Be that as it may the important point is the outcome which as the Council submits is that to all intents and purposes the original dwelling had been demolished – barring a few walls or parts of walls – before the new works of construction on the new walls and roof structure commenced.

Stepping back from the finer detail the question to ask as matter of fact and degree is what took place from December 2011 onwards. Was it simply some staged extensions to an existing dwelling that were arguably not development or permitted development or alternatively in essence the construction of a new dwelling with the integration of a few remaining walls? I consider that the only logical conclusion to draw given the scale and amount of demolition that took place is that what has been built is a new dwelling and not one that has been repaired and extended by alteration and enlargement. Reaching any other conclusion based on the facts would be contrary and send out a message that it is possible to build a new dwelling of a fundamentally different design by employing an argument of staged removal and replacement under PD rights.

The appellants place great reliance on the argument that some works of excavation commenced before the house was vacated and the demolition of the walls and roof took place. The assertion is that these foundation works were lawful but as they were not in accordance with any LDC granted I have no way of knowing that this so. It is true that they may still have been PD even though the LDC scheme was not being followed (the wider front extension point) but even if this were so I do not consider it assists as what has resulted is not some extensions to the front and rear of the house with the majority of the original walls retained but effectively a new dwelling.

Notwithstanding this conclusion I turn to the case law cited to see whether this would lead to an alternative conclusion. There is no definition of a dwellinghouse in the GPDO but the case of Gravesham BC v SSE [1984] 47 P&CR 142 is still good authority for what it constitutes; that is something which has the ability to afford to those who use it the facilities required for day-to-day domestic existence. This judgment makes clear that this could apply to a holiday home occupied on a seasonal basis or a dwelling vacated to undergo extensive repairs or for sale. Thus the stripping out of kitchens and bathrooms or the addition of substantial extensions that render it uninhabitable for a period of time would not mean that it ceased to be a dwellinghouse.

The extent of intervention therefore could be considerable and occupation is not necessary whilst building works are undertaken. However, there must be something significant by way of a structure that remains. In the instant case there were just a few bits of wall and no roof whatsoever. Given the cumulative degree of intervention and demolition that had occurred there is no way that what remained could provide facilities required for day-to-day existence and it follows that by December 2011 the dwellinghouse no longer existed. Support for this view is drawn from an LDC appeal decision submitted for the appellants which found that the current remnants of a cottage could not reasonably be regarded as a dwellinghouse. To quote from paragraph 8 of this decision, "One wall and a portion of another scarcely provide the facilities for domestic day to day living". Hence I find that the allegation is correct in that what has taken place as a matter of fact is the erection of a building used as a dwelling...

Having reached this conclusion on ground (b) that what has taken place is the construction of a replacement dwelling it is not necessary to go on to consider whether the PD rights relied on apply as they are only applicable where a dwellinghouse was in existence when they were being undertaken. Even if these rights could be relied on the extent of demolition undertaken meant that they had been lost and could not some how be restored by the claims of a phased rebuilding project.

Notwithstanding this finding I will for the sake of completeness address the principal arguments advanced under ground (c) in case they should become relevant.

I have taken account of the finding in Riordan Communications Ltd v South Bucks DC [2001] 81 P&CR 8 that the subjective intentions of individuals will not override the objective test of whether what has taken place requires planning permission. I am also mindful of the findings in R (oao Watts) v SSETR [2002] EWHC 993 (Admin) that it is not enough to simply commence development permitted under GPDO rights but it must be substantially completed in accordance with those rights. If there is some change during the building process which takes the development outside the GPDO rights then the fact that it started in accordance with these rights will not provide a sound defence as to lawfulness. I accept that that case concerned the exceeding of the volume limit under previous limitations but it is the principle that is important not the detail. So as submitted for the Council, even if the development in this case commenced under PD rights, which in any case has not been proven, the effective demolition of the majority of the building meant that there was no dwellinghouse of substance left to enlarge, improve or alter.

In this respect, I consider that the appellants' reference to the findings in Cole v Somerset CC [1956] 1 QB 23 does not assist their case as it deals with a situation where a change of use occurred before such a change was precluded by the making of an Article 4 Direction. The court held that this change of use was still lawful. However in the present case the Council have not sought to retrospectively impose limitations on PD rights. They simply contend that what has taken place is not PD for the reasons already explained. Similarly the case of R (Orange PCS) v Islington LBC [2006] EWCA Civ 157 concerns the retrospective designation of a conservation area which could not undermine the lawfulness of development already carried out under the GPDO. Again this is not comparable on its facts.

There is then the case of Sainty v MHLG [1964] 15 P&CR 432. I accept the submission for the appellants that this concerned the demolition of 2 houses in their entirety and the erection of replacements of different design on slightly different foundations which is not comparable in terms of circumstances. However a comment Lord Parker CJ is of bearing. This is set out in the Council's closing submissions and makes clear that it was correct in law to find that a dwellinghouse must be in existence when the operations claimed to be PD are being carried out, that is throughout the course of construction. If the dwellinghouse is demolished it is no longer capable of being enlarged improved or altered under the relevant Order. He went on to consider the prospect of a new erection in stages but found that this would very rarely occur. Although the facts in C W Larkin v SSE & Basildon DC [1980] JPL 407 and Hewlett v SSE [1985] JPL 404 are distinguishable from the present case they reinforce the principle that PD rights cannot be relied on if the original building is effectively replaced with a new building.

In Hewlett Lord Donaldson MR commented "it is very difficult to think how you could rebuild by stages in such a way as to produce what is in effect a new building and still be able to maintain that it was merely the old building in an improved form unless, as was pointed out in argument, there was a very substantial separation between the stages – a century or so was suggested". In the present case no such separation has occurred but a single project carried out in consecutive stages has led to the dwelling that has been created...

With these findings in mind I do not consider that it is possible for the appellants to rely on the GPDO rights as a basis for lawfulness of what they have constructed. However, I will for completeness address these arguments. The relevant parts of the GPDO cited are Classes A, B and C of Part 1 of the Schedule contained in the GPDO (2008 amendment).

In terms of Class A the Council contend that some of the limitations set out in the sub-paragraphs are exceeded...

In terms of A.1(d) it was agreed that because the limitations are conjoined ('and' rather than 'or') that this does not apply to the addition to the principal elevation as this faces southwards and does not front a highway. There is however an area of dispute concerning the extension of the front projection beyond the line of the original side elevation which does face towards the highway. As this projection exceeds 4m in height and is more than one storey in height it would be caught by the limitations in A.1(h). The appellants' position is that demolition means that there is no remaining original side elevation and so it was therefore possible to widen the extension towards the highway by about 2m – a point with which a Council officer concurred.

I find no substance in this argument and agree with the views expressed by the Council's witnesses and in submissions on their behalf. I accept they run counter to the previous officer's interpretation but this was an informal opinion and not a legally binding decision. I reach this conclusion for two reasons. Firstly there is no caveat in the GPDO which indicates that if original walls are demolished then the limitations within in it no longer apply. Secondly, if this argument were to apply it would mean that any amount of increase in width could occur, so long as other limitations, such as not being within 2m of the boundary of the curtilage (A.1(g)) were satisfied. On a large plot such as this it could lead to huge additions being added beyond the line of an original side wall simply because it had first been demolished. I cannot accept that this was the intention of the Government in the rights conveyed and, as I have already pointed out, I am reassured in this finding as this is it not what the wording of the GPDO actually states. Consequently, I find that the increase in the width of the front projection is not PD and required planning permission."

Before considering the main issues it is worth focusing on what the proposal is that flows from the deemed planning application and ground (a). S174(a) concerns breaches of planning control which may be constituted by the matters stated in the notice for which planning permission ought to be granted. So essentially, unless the breach of planning control is wrong (which I do not consider it is), the deemed application in this case is for the dwelling as built on the date the notice was issued. I accept that by virtue of s177(1)(a) it is possible to grant permission for the whole or any part of the development constituting the breach of planning control. However what is not possible is to grant planning permission for some alternative form of development that differs from the alleged breach. The authority for this is Richmond-upon Thames LBC v SSE [192] 224 EG 1555. Planning permission may only be granted in respect of the matters stated in the notice as constituting a breach of planning control and there is no power to go beyond the notice. With this proviso in mind it is not a question of considering alternative proposals which fall outside the scope of the notice if they materially differ from what is alleged and has been built. I appreciate that I did request alternative schemes which the appellants might pursue instead but they need be viewed in the context of this legal principle.

There is also the matter of whether it would be possible to grant a split decision (allowing the deemed application in part, but refusing the other part) having regard to the practicalities of whether the parts are functionally and physically severable. This is a necessary prerequisite if the requirements of the notice which would bite on the elements that are refused permission, are to be understood and achievable. If this were not the case then such an approach would be inappropriate as it would leave the parties guessing as to how the building was to be modified to comply with the terms of the notice. The option in such circumstances would be to make a planning application for a modified form of building. Should permission be granted, having regard to the powers conveyed by s180 of the Act, it would result in any notice ceasing to have effect in so far as it was inconsistent with that permission."

Be that [arguments about arts and crafts heritage in the area] as it may, the 2nd and 4th criteria in Policy H6 of the LP require replacement dwellings to be in scale and character with the area and to respect their context and immediate surroundings. Policy G5 of the LP provides a design code for new development which covers a number of factors, including context, scale/proportion/form, roofscape and materials/architectural detailing. I have considered Mr Piper's analysis of the context and the design of houses in the immediate surrounding area. I accept that there are a range of ages and styles of dwelling in Blackheath and no consistency in the materials used. Nevertheless some coherence is provided by the modest scale of most properties and although there are examples of rendered walls, buff brickwork and timber cladding (an example being Silvercombe immediately to the south) the red brick walls, often with tile hanging, and clay tiled roofs are still the predominant facing materials that characterise houses in the area. Moreover although properties have been extended, from the information provided and my own observations, I am not aware of anything in the vicinity which is directly comparable in scale to what has been built on the appeal site or in terms of its striking modernistic appearance.

What I consider to be particularly incongruous and out-of-keeping with anything I could see locally is the huge expanses of glazing which seem to be randomly distributed in order to suit the internal configuration and outlook across the rear garden that was sought. The central glazed opening of 2 storeys in height is, as some objectors have commented, more akin to an office building than a dwelling. Whilst this might be an appropriate design approach in an urban location or one where there are no design parameters to follow this is not the case in Blackheath given its inherent character and rural setting. In terms of the roof design this is odd and unsettling to the eye as it includes two areas of truncated roof comprising a mainly flat deck with sloping edges. This contrived design, rather than the use of full pitched roof slopes meeting at a ridge, adds to the incongruity in appearance especially in terms of the two storey front projection. Added to this there is the use of slates on the large roof envelope which is not the predominant roofing material found in the locality.

These are not just my own conclusions but seem to be shared to a significant degree by Mr Piper. He refers to "the design needing to be resolved by the employed tradesmen on the 'hoof' and in an ad hoc manner in order to achieve the result visible today". He comments that the original design intended a flat roof on the two storey extension but this could not be readily constructed as visualised and the compromise was the "slightly peculiar truncated roof pitch". He acknowledges that in terms of fenestration he was constrained by the fact that the openings had already been formed in order to create the desired internal environment and "there was and still is little consistency in the size and distribution of the windows". The slate roof he agrees "might initially appear to be an odd choice but when seen on site it feels completely appropriate and not at all out of context with the site". It is not just the site but the surroundings that are important and I doubt whether this wide expanse of slate accords with the context of the typical red clay tiles found in the vicinity.

What I find most telling from his evidence is what is said at paragraphs 12.18 to 12.20. He comments that the south and west elevations are less successful in design terms given the substantial and shear (sic) elevation with little relief through stepping or layering. He says that this was due to being constrained by PD requirements but I find this argument to be without foundation. The appellants were not bound to follow PD rights and indeed I have found that they have not in any case. The eastern elevation could have been designed in a manner which better accorded with the advice of an architect in terms of its appearance. Whether this resulted in the need for planning permission to be sought by application is irrelevant to the consideration of what is good design.

He then goes on to describe the single two storey high opening which corresponds with the entrance hall and glass staircase as being a 'tour de force'. Having reached this view he then comments:

"However the shear (sic) brick and glass elevation rising through three full floors is in some respects uncomfortable and lop-sided. The imbalance is emphasised by a subtly changing solid to void proportion along the elevation from north to south along with the slightly clumsy treatment of the roof at the north edge and the scale of the central glass screen."

The defence against these seeming inadequacies or weaknesses in the finished design is to again plead the restrictions imposed by PD limitations and also that this elevation is seen as private one which will soften with the growth of landscaping. I agree that the impact is striking and dramatic and possibly even beguiling. However given the criticisms of Mr Piper, the only architect called to give evidence, I remain unconvinced concerning the overall design credentials of the finished development and must question his conclusion that, on balance what has resulted is an acceptable solution...

Given the above analysis I consider that the failings in the design of the dwelling go beyond matters of detail and include some fundamental flaws. I consider it is probable that the building that has arisen results from a contrived approach which has been more concerned with the internal arrangement, range of domestic facilities provided and outlook from within than the external appearance of the building. I find that the finished form has a jarring appearance, especially on the eastern side and that this together with the expanse of glazing, odd truncated roofs and slate finish is out-of-keeping with the immediate context and the character of the area. This runs counter to the thrust of the advice from the Framework set out above, the 2nd and 4th criteria of Policy H6 and the terms of Policy G5 of the LP."

I have found that the development that has taken place is inappropriate development in the GB and has caused harm to its openness, contrary to the relevant local and national policies that apply. This harm has to be afforded substantial weight. Set against this combined harm I consider that the other considerations relied upon either carry no or little weight. Consequently, I conclude that these other considerations, whether taken individually or cumulatively do not clearly outweigh the harm identified and that there are no very special circumstances which justify the granting of planning permission. I have given consideration to whether conditions could be imposed to render the development acceptable but given the scale of the development and the fundamental flaws in its design I do not consider that this is possible.

I have had regard to the 3 modified forms of development that have been supplied on the appellants' behalf by Mr Piper. These show various levels of intervention and reduction in the extent of the front and rear extensions and the removal of the garage with the second and third options. Whilst these options would reduce the floor area and volume of the dwelling they are materially different forms of development to what constitutes the deemed application before me and having regard s174(2)(a) of the Act and Richmond-upon-Thames I consider that it is, at the very least, questionable in law whether I am in a position to substitute these schemes for consideration under ground (a).

Even if I were there is also the question of functional and physical severability and whether it is even possible to grant permission for some parts of the dwelling that might be acceptable, subject to conditions. Given the integrated nature of the development I do not consider that this is possible. This is not a case where there is clear divide between parts which are acceptable and parts which are not. I therefore consider that issuing a split decision is not a realistic proposition in this case. The appellants are at liberty to submit planning applications and the 2nd option (2.2) would appear to accord with Scheme C which is already the subject of a planning application under consideration by the Council. By virtue of the powers conveyed by s180 of the Act, should permission be granted for any of these schemes, any extant enforcement notice will cease to have effect in so far as it is inconsistent with that permission.

I therefore conclude that the ground (a) appeal should not succeed and deemed planning permission for the development as constructed or any modified form of dwelling as described and detailed should not be granted."

However even if I am wrong in this finding, and the authorities of Tapecrown and Ahmed are found to indicate otherwise, then I do not consider that this assists the appellants. Even if it were held that where the purpose of the notice was to remedy the breach of planning control, lesser steps which were less costly or disruptive should be considered, these steps still need to amount to a realistic and obvious alternative which is acceptable. From what is before me by way of alternatives suggested I am not in a position to conclude that they are realistically achievable or obvious solutions which would overcome the harm that has been identified. So following that thread from Tapecrown this does not assist the appellant. I would add that there is also no obvious lawful 'fallback' to resort to as can be the situation in enforcement cases. An example might be where a fence in excess of 2m on a garden boundary has been erected; the legitimate fallback, assuming PD rights have not been removed would be to reduce the height to 2m as an alternative to complete removal. No such fallback scenario exists in this case.

Taking these points together I do not consider that it would be acceptable or appropriate to substitute lesser steps or requirements to those set out in the notice. It is not my role to try and devise alterative steps from the schemes before me not least because it is well accepted and understood principle that an enforcement notice needs to be clear on its face from the four corners of the document so that all (appellants, Council, 3rd parties) are certain as to what is necessary to achieve compliance. I do not consider, even if alternatives were permissible, they could be described with the necessary level of precision to achieve this. For all these reasons there is no success on ground (f)."

"This would strike an appropriate balance providing sufficient time for attempts to be made to reach an amicable solution over an alternative form of development."

In coming to my conclusions and decision I have taken account of the human rights implications that flow from Article 8(1) European Convention on Human Rights and Article 1 of the First Protocol of the Human Rights Act 1998. These are the rights to respect for private and family life, homes and possessions. They are not absolute rights and interference with these rights is permissible in the public interest or in the interests of the economic well-being of the country which has been found to include environmental considerations.

The upholding of the notice and the refusal of the deemed planning application could lead to the demolition of the house in its entirety if no suitable alternative scheme is permitted by the Council before the notice takes effect. This would infringe the Arnolds' human rights under the above Articles and would leave them in a position where they would need to find another home or at least alternative accommodation for a significant period of time. The Arnolds argue that they may lack the finances to demolish the house and build something that is acceptable to the Council whilst in the meantime paying rent for other residential accommodation over this period. I was not presented with details of their assets nor did I request them but this outcome would be likely to have a considerable impact on their financial resources.

Notwithstanding this finding, on the basis of my reasoning on ground (g) there do appear to be reasonable prospects of a mutually agreeable solution being found and this is not a situation where the appellants will be dispossessed of their land or where they are unlikely to be able to modify the house that exists or build an alternative on the land. As I have said above they could consider bringing a mobile home to the site which would cater at least temporarily for their accommodation needs.

In all these circumstances, I am satisfied that upholding the notice with the extended period for compliance would be a proportionate measure having regard to the harm that has resulted to the environment and the public interest and one which would not violate the appellants' human rights."

Grounds of challenge in brief

The law

"The Minister in his letter of decision, after referring to the appellant's contention said that:

"In his [i.e. the Minister's] opinion however Class I, 1, of that Order must refer to a dwelling-house which is in existence when the operations mentioned in that Class are being carried out. After a dwelling-house is demolished that building is no longer capable of being enlarged, improved or altered and is therefore unable to benefit from the general permission contained in the Order. In any event, the Minister takes the view that the complete replacement of one building by another does not constitute enlargement, improvement or alteration of the original building. Furthermore, in his view the reference to "original" building in Class I, 1, when read with the definition of "original" in article 2(1) of the Order seemed to be only a means of establishing a point in time for the calculation of the cubic capacity of a building. He is satisfied that your client's proposals involve development for which planning permission is required."

For my part, I find it unnecessary -- without discourtesy, I hope, to Mr Kerrigan -- to deal with the details of his arguments. I entirely accept as correct in law what the Minister says and for the reasons given by him. I would only mention one point which is urged on behalf of the appellant, namely, that that cannot be the true meaning of the words "enlargement, improvement or alteration" because it would be perfectly possible, as in the case, for instance, of an old cottage, to take down one wall, put in a dampcourse and re-erect the wall. That would certainly be an improvement or alteration. He would then be entitled to deal with another wall and by stages through different walls, in the course of time maybe, would enlarge the permitted capacity.

In my judgment, it may well be that it is possible to arrive at what in effect is a new erection by stages, each stage of which can be said to be an improvement. That certainly is not this case and I should imagine that it would be a case which could very rarely occur. It would be difficult to think how it could be done economically or over a period long enough to be able to say that each stage was merely an improvement, and that the whole thing was not just a rebuilding."

"It meant that, if the arrangements were so made that the house remained a dwelling-house at all times and for all purposes, the fact that bits of it were pulled down and rebuilt did not necessarily involve planning permission because it could be argued that was a mere improvement and no more. But whether or not a particular activity was justified on that basis or not was entirely a question of fact and degree. It was not possible to observe from the result without knowing a great deal of detail about the circumstances in which the work was done. But the principle was clear enough."

"Turning back to the case before the court today and applying those principles as best one can, the real question, as May J pointed out in the course of argument, was whether the activities with which they were concerned did amount to improvement or did they amount to rebuilding. Whether or not they followed either of those categories depended, almost entirely on matters of fact and degree.

The Secretary of State had made his decision upon this work, and he must conclude the judgment by referring to what he had said on the operations in this case. He had said, quoting the inspector: "None of the external walls of the original building remain and new walls have been constructed as part of one operation and are unlike the walls of the original building; the construction of those walls, as distinct from the replacement of one or two of them, are not works of maintenance, improvement or other alteration of a building within the meaning of section 22 of the 1971 Act since the original building has virtually ceased to exist; the construction of the new walls consequently involves development. The building operation of the new external forms part amount to the construction of a new dwelling; the construction of the new external walls is, therefore, not development within the curtilage of a dwelling-house and, consequently, is not permitted under Class I. 1 of Schedule 1..."

All that now remained, according to the Secretary of State, of the original building on the site were some internal supporting walls and the roof and part of the floor. Speaking for himself, he had no doubt that, those being the facts of the case, it was fully open to the Secretary of State to say upon those facts that that which was done was not the improvement of the dwelling-house but something else, something else which did not qualify for exemption under the exception. He would therefore dismiss the appeal."

"An enforcement notice dated June 30, 1977, related to a very small building in the "green belt" at Coxtie Green Road, Brentwood, Essex. Not only was the building small, but it had the unusual feature that it only had three walls, the remaining space being used apparently as a means of access for various lorries which were repaired under its shelter. There was an existing use certificate relating to the site, which permitted the owner, Mr Hewlett, to carry on business as a scrap metal merchant and breaker, and no objection had yet been taken to his running a haulage business. The objection taken was to works which he did to this building. They apparently involved jacking up the roof, then undertaking certain operations to the walls in turn, and then at a later stage probably working on the roof itself.

Mr Hewlett maintained that none of these operations, either individually or collectively, constituted development for the purposes of the Town and Country Planning Act 1971 because of the beneficient provisions of section 22(2)(a). His case was that these operations, however extensive, did not materially affect the external appearance of the building and were merely improvements; in particular, they did not amount to the creation of a new building...

The third ground of appeal concerned whether this building could be a new building. It was submitted on behalf of the appellant that if it could be shown that each stage of the work was an improvement of the old building, the fully improved building had to, as a matter of law, be the same building albeit in an improved form. Therefore, unless the old building had been knocked down in the course of the works, the Secretary of State could not hold that this was a new building.

This submission would in fact involve overruling two decisions of the Divisional Court: Sainty v Minister of Housing and Local Government and CW Larkin v Basildon District Council. The submission was none the worse for that, but Lord Parker CJ in Sainty's case, on which Larkin's case was to some extent founded, said this at page 434:

"In my judgment, it may well be that it is possible to arrive at what in effect is a new erection by stages, each stage of which can be said to be an improvement. That is certainly not this case and I should imagine that it would be a case which could very rarely occur. It would be difficult to think how it could be done economically or over a period long enough to be able to say that each stage was merely an improvement, and that the whole thing was not just a rebuilding."

It was quite clear that Lord Parker was contemplating precisely the problem which had arisen here. For his part he (the Master of the Rolls) entirely agreed with the learned Chief Justice that it was very difficult to think how you could rebuild by stages in such a way as to produce what was in effect a new building and still be able to maintain that it was merely the old building in an improved form unless, as was pointed out in argument, there was a very substantial separation between the stages - a century or so was suggested. In such a case it might indeed be possible to say that it remained the same building. But it was essentially a question of fact and degree -- not a question of law -- and the Secretary of State had decided it as a matter of fact and degree."

"In using a simple word in common usage and leaving it undefined, Parliament realistically expected that, in the overwhelming majority of cases, there would be no difficulty at all in deciding whether a particular building was or was not a dwelling-house. The use in a statute of almost any word in common usage may give rise to difficulties of interpretation in a very small number of cases, but the problems are both fewer and less troublesome than those that are apt to result when the statute defines the word. The good sense of this is such that I do not intend to resolve the issue that arises in this appeal by attempting to define what Parliament left undefined.

The more helpful approach, in my opinion, is to consider a number of buildings that quite clearly are dwelling-houses and others that equally clearly are not and to see whether this throws up any indication of what ought and what ought not to be taken into account.

Consider a building that anyone would acknowledge was a dwelling-house. If it is not being lived in because, for example, the occupants are on holiday or because they have two houses and spend half the year in each, it remains a dwelling-house. Take a common situation where a family has a second house in the country that is only visited at weekends, in the summer months and for a summer holiday. That is clearly a dwelling-house. So the intention to use one's house, or the practice of using it throughout the year, is not essential.

If a house is empty pending its sale or because its owner cannot, or does not want, to let it, it is still a dwelling-house. So emptiness is not fatal.

If it cannot be occupied because it is flooded, or is undergoing extensive repair, it is still a dwelling-house. So, too, a second home in a remote mountainous district, cut off by snow every winter. So an ability to use it whenever one wants is not an essential either.

Suppose that there is a national emergency and an order is made prohibiting the use of houses in a particular area for the duration of the emergency: they would nevertheless remain dwelling-houses. So even an inability to use a house lawfully does not necessarily prevent it from being a dwelling-house.

Leaving aside extraordinary events like floods and national emergencies and repairs so extensive that the occupant has to move out, is it a characteristic of every dwelling-house that the owner or occupier could live in it permanently if he wanted to? I think not...

Mr Aitchison has emphasised the "dwelling" in "dwelling-house" and has stressed that to dwell is to remain or reside. Comparatively few of those living in the buildings last mentioned ordinarily stay for long enough to be regarded as residing there. He submits, therefore, that a capacity to provide permanent accommodation is the essential character of a dwelling-house.

In my judgment, however, its more distinctive characteristic is its ability to afford to those who use it the facilities required for day-to-day private domestic existence.

Whether a building is or is not a dwelling-house is a question of fact. In Scurlock v Secretary of State for Wales, the Secretary of State had to decide whether a building that was used partly for residential purposes and partly for business purposes was a "dwelling-house" within the meaning of the Town and Country Planning General Development Order 1973. He adopted a factual approach, and the Divisional Court held that that was right."

(1) I accept, as did Mr Harwood, that the GPDO Class B most readily applies when examining the position before development in reliance upon it is started. But a development which would otherwise require express planning permission continues to need the permission afforded by the GPDO until it is "substantially completed" i.e. until it has reached the stage at which no further planning permission would be required for any of the works being done to it. If between the start of such works and their conclusion the building which is being altered pursuant to the GPDO is otherwise enlarged, improved or altered so that the cubic content of the "resulting building" together with the GPDO works would now exceed 50 cubic metres, those GPDO works cease to be protected by the GPDO and can be enforced against.

In other words, in examining whether in Class B1(d) the cubic content of the resulting building "would exceed" the cubic content of the original dwelling-house by more than 50 cubic metres, the prospectivity inherent in "would" continues to apply until the GPDO permission no longer needs to be relied on for the carrying out of any works. The availability of the GPDO is not set in stone by the mere start of works...

(5) It is, accordingly, my judgment that the inspector had to ask himself as at the time when the GPDO works, namely the roof extension, were substantially complete and thus at the time when the claimant last ceased to do any works for which any planning permission, express or pursuant to the GPDO, was necessary: did the cubic content of the dwelling-house, as at that time, including any actual cubic content already created by other works of enlargement, improvement or alteration ("the resulting building") exceed by more than 50 cubic metres, the cubic content of the original dwelling house? The side and rear extensions may or may not have any cubic content, but there were no findings of fact in relation to that matter...

(8) Instead clarity in the legal position is, in my judgment, important for these operations. That is provided by the application of the statutory provisions, however fine the distinction to which that leads, rather than by the creation of non-statutory tests. The GPDO is not well cast so as to deal with simultaneous works, or what might be seen as single building operations, but best sense is made of it if it is recognised that one should measure the roof extension against the existing cubic content whether that cubic content had recently been acquired, whether it existed at the start of the building works, or whether that cubic content had been created shortly before the conclusion of the roof extension works. One ignores prospective cubic content during that examination, however imminent that prospective cubic content might be. One ignores it because once prospective cubic content is relevant one is driven to accept as relevant that which does not, and may never, exist as cubic content.

(9) In view of the fact that it is inherent in the GPDO that the precise sequencing of doing works can affect the availability of the permission which the GPDO provides, I see nothing contrary to the purpose of the legislation, or to planning policy, in applying that sequencing potential to this situation. The sequence of events, and the state of affairs at the completion of works, matters for widely separated works, and also matters for those closely following upon each other's heels. There is no legal justification for switching to a non-statutory single building project approach at some stage at which detecting the separation involves a careful factual analysis and a perhaps quixotic outcome in extreme cases."

"Was the judge correct that the first respondent had an accrued right to develop the site in accordance with the details submitted in the application at least from the date of issue of the Prior Approval Notice, so that the right to develop was unaffected by the subsequent designation of the Highbury New Park Conservation Area?"

The question then arises - what middle way can be found consistent with principle and the statutory language? Plainly the Development Order has to be read as a whole. Certainly Part 24 has to be read as a whole. Thus the grant of planning permission for class A development and its withholding by paragraph A.1(h) have to make sense in the light of each other. It seems to me therefore that if we contemplate the notional case of a prospective developer who has not yet taken any steps to carry forward his development - whether by seeking prior approval, commencing works or otherwise - and who, on a particular date, asks the question "Does he have an approved right to install telecommunications apparatus on a particular site?" the answer will be "Yes, unless on the facts then prevailing any of the exceptions including paragraph A.1 (h) apply." So much is consistent with the concession made by Mr Katkowski that in a "non-prior approval" case no right to develop accrued until work had begun. I note in passing that this concession is incorrectly recorded by the judge at the start of paragraph 41 as going to the time when the work had been substantially completed.

It seems to me that in a non-prior approval case once the work has been done the advent of conservation area status cannot condemn the development as unlawful. The planning permission has been implemented; work has been done and expense incurred on the faith of it.

It is true, as Mr Taylor submitted this morning, that in such a case the developer - perhaps a home owner - will have incurred expense before starting the work and that expense would not be compensatable if then the conservation area is designated before the works are commenced. The matter is, no doubt, inevitably rough and ready, but a point has to be fixed somewhere for the crystallisation of the benefits given by the planning permission; and it seems to me that the start of the works provides at least a desirable degree of certainty.

So much for a non-prior approval case. What about a case where prior approval has to be sought, as here? The judge thought this instance was not at all straightforward. I am bound to say that I have some sympathy with that. It seems to me, as Mr Katkowski submits, that in a prior approval case the analogue to the commencement of work in a non-prior approval case is the application for prior approval and receipt of and reliance on the planning authority's response. In making the application the developer must have committed resources to assembling the required materials.

In a case where, in response, the planning authority grants prior approval, unlike this case where the response was that approval was not required, it would surely be unjust if the developers' inevitable reliance on the grant could be defeated by the adventitious fact of a conservation area designation. Cases like the present where no approval is required cannot be in a different category.

I would not fix the date at which the planning permission crystallises or its benefits accrue in a non-prior approval case at the moment of commencement of the work but at the time when the favourable response of the local planning authority is received...

There is also Mr Justice Ouseley's decision in Watts to which I have made passing reference. With respect, I do not propose to go into it. Although there is certainly some similarity between Mr Justice Ouseley's reasoning and one of Mr Taylor's formulations of his argument, it dealt with a different provision in the development order and it does not seem to me that there is any potential read across that would assist Mr Taylor."

the enlarged part of the dwellinghouse would extend beyond a wall forming a side elevation of the original dwellinghouse, and would -

exceed 4 metres in height

have more than one storey, or

have a width greater than half the width of the original dwellinghouse."

Contents and effect of notice.

An enforcement notice shall state -

the matters which appear to the local planning authority to constitute the breach of planning control;

the paragraph of section 171A(1) within which, in the opinion of the authority, the breach falls.

A notice complies with subsection (1)(a) if it enables any person on whom a copy of it is served to know what those matters are.

An enforcement notice shall specify the steps which the authority require to be taken, or the activities which the authority require to cease, in order to achieve, wholly or partly, any of the following purposes.

Those purposes are -

remedying the breach by making any development comply with the terms (including conditions and limitations) of any planning permission which has been granted in respect of the land, by discontinuing any use of the land or by restoring the land to its condition before the breach took place; or

remedying any injury to amenity which has been caused by the breach...

Where -

an enforcement notice in respect of any breach of planning control could have required any buildings or works to be removed or any activity to cease, but does not do so; and

all the requirements of the notice have been complied with,then, so far as the notice did not so require, planning permission shall be treated as having been granted by virtue of section 73A in respect of development consisting of the construction of the buildings or works or, as the case may be, the carrying out of the activities."

Appeal against enforcement notice.

An appeal may be brought on any of the following grounds -

that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;

that those matters have not occurred;

that those matters (if they occurred) do not constitute a breach of planning control...

that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;

that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed."

Grant or modification of planning permission on appeals against enforcement notices.

On the determination of an appeal under section 174, the Secretary of State may -

grant planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control, whether in relation to the whole or any part of those matters or in relation to the whole or any part of the land to which the notice relates."

In Taylor & Sons (Farms) v Secretary of State for the Environment, Transport and the Regions [2001] EWCA Civ 1254, it was said that appellants should contemplate the possibility that their primary contentions might fail, and if there was a fall-back position on which they intended to rely they should make this clear in their submissions. It was not reasonable to come to court and ask for the case to be remitted to the inspector so that he or she might ask for further submissions which could and should have been made in the first place if the landowner wished to advance them.

Taylor was considered in Tapecrown. Carnwath LJ, with whom the other members of the court agreed, observed at para 33 of his judgment that the inspector has wide powers to decide whether there is any solution, short of a complete remedy of the breach, which is acceptable in planning terms and amenity terms. If there is, he should be prepared to modify the requirements of the notice and grant permission subject to conditions. The inspector's primary task, however, is to consider the proposals that have been put before him, and although he is free to suggest alternatives it is not his duty to search around for solutions. Carnwath LJ came back to this later in his judgment:

As I have said, I would not wish to lay down any general rules. I would accept that as a general proposition, given the limitations of the written representations procedure, an appellant would be well advised to put forward any possible fall-back position as part of his substantive case. It is not the duty of the inspector to make his case for him. On the other hand the inspector should bear in mind that the enforcement procedure is intended to be remedial rather than punitive. If on his consideration of the submissions and in the light of the site view, it appears to him that there is an obvious alternative which would overcome the planning difficulties, at less cost and disruption than total removal, he should feel free to consider it. In such circumstances fairness may require him to give notice to the parties to enable them to comment on it..."

The judgment of the court in Moore was given by Sullivan LJ. He referred to Taylor and Tapecrown as establishing the proposition that an appellant under ground (f) should state his "fall-back" position because the inspector's primary duty is to consider the proposals which have been put before him, and he is not under any duty to search around for solutions. He continued:

We readily accept that it is not the duty of an Inspector to make an appellant's case for him (see [46] of Tapecrown per Carnwath LJ, as he then was), but in the present case the appellant had made her case, albeit that she made it under ground (b) rather than ground (f), that the alleged use in breach of planning control, which the notice required her to cease, was too wide. As Carnwath LJ observed in Tapecrown 'the enforcement procedure is intended to be remedial rather than punitive' ([46]). We accept [counsel's] submission that the mere fact that this issue was raised under ground (b) rather than ground (f) is not fatal to this ground of appeal. If there was an 'obvious alternative which would overcome the planning difficulties, at less cost and disruption than total [cessation]' the inspector should have considered it: Tapecrown."

The court in that case held on the particular facts that there was no "obvious alternative" on the material before the inspector.

Whilst Carnwath LJ's observations in Tapecrown were obiter, as Mr Whale emphasised in his submissions, the same cannot in my view be said for para 40 of the court's judgment in Moore. I note too that in Tapecrown the point was expressed in terms of discretion (if there appears to the inspector to be an obvious alternative, he should feel free to consider it), whereas in Moore it was expressed in terms of duty (if there is an obvious alternative, the inspector should consider it). In my judgment, the deputy judge was correct to direct himself in accordance with Moore. He was also correct that the principle in Moore is not limited to consideration under ground (f) of a point raised under another ground but is equally capable of applying to consideration under ground (a) of a point raised under ground (f).

That brings me to the deputy judge's finding that the inspector erred in law by overlooking an obvious alternative by way of granting planning permission for the 2005 scheme and varying the enforcement notice accordingly. It is clear that the inspector did not consider the possibility of that alternative. I do not accept Mr Whale's submission that even if the inspector had considered it he would have had no power to grant permission for the 2005 scheme. Whether it would have been open to him to grant such permission depended, as explained below, on an exercise of planning judgment which he did not undertake. It cannot be said, either as a matter of law or on the basis that the facts were capable of leading to only one reasonable answer, that it would have been outside his powers to grant permission for the 2005 scheme.

I agree with Mr Whale that the power under section 177(1) to grant planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control is linked to an appeal under ground (a) rather than under ground (f). But Mr Ahmed's appeal included express reliance on ground (a) and he would have been deemed in any event to have made an application for planning permission by virtue of section 177(5) as it existed as the material time. Although his ground (a) appeal sought planning permission only in respect of the development as built, which constituted the whole of the matters stated in the notice as constituting a breach of planning control, the power under section 177(1) was to grant planning permission "in relation to the whole or any part of those matters". In principle, therefore, planning permission could have been granted for the 2005 scheme if the differences between it and the development as built (i.e. the differences identified in the notice as "unauthorised additions, alterations and variations to the approved scheme") were such that a development in accordance with the 2005 scheme could be regarded as a "part" of the development as built. This was a matter of planning judgment for the inspector. It was a judgment he did not make because of his failure to give any consideration to the possibility of granting planning permission for the 2005 scheme. This court is not in a position to decide what conclusion he would have reached if he had considered that possibility. In particular, we cannot exclude the possibility that he might reasonably have concluded that the 2005 scheme was to be regarded as "part" of the development as built, on which basis he would have had power under section 177(1) to grant planning permission in relation to it.

The Inspector obviously could not grant permission for the whole of the breach alleged in the notice and so achieve the three flat scheme; that would simply leave the five flats in place. His only other power was to grant permission for part of the breach alleged in the notice. But the three flat scheme could not be arrived at by granting permission for part only of the matters alleged to constitute the breach of planning control in the notice. Only one of the five flats, the one on the first and second floor, could be left untouched, although an entry door would have to be removed. (Despite the Inspector's conclusion that this particular flat was also substandard, he appears to have accepted that it could be part of the three flat scheme as shown on the Appellant's drawings, although they appear to show negligible change to it). The four flats on the ground floor could not go into two flats without internal alterations to walls, doors, and facilities. Works were required in order to produce three flats, which were not part of the matters alleged to constitute a breach of planning control in the notice. Granting planning permission for the larger flat without more, would not have remedied what the Inspector found to be the objectionable parts of the breach of planning control, nor would it have produced the scheme which the Inspector was prepared to see achieved.

For Mr Wills' submissions on ground (a) and the deemed planning permission to succeed without recourse to powers governing remedial steps under ground (f), the statutory power in s177(1)(a) has to be read as empowering the grant of permission for a development which is not, and is not part of, the matters alleged to constitute a breach of planning control, and indeed which does not exist. The wording of s177(1)(a) is too specific and clear for such an interpretation."

The agreed starting point in this appeal is, therefore, that the ground (a) appeal, the deemed application under subsection 177(5), and the power to grant permission under section 177(1) are of no assistance to the Respondent. The sole question is whether the Inspector erred in concluding that he did not have power to enable the implementation of the three flats scheme by allowing the appeal under ground (f), varying the steps required by the notice, and thereby enabling what remained after compliance with those requirements as varied to be treated as having been granted planning permission under section 73A by virtue of the operation of subsection 173(11)...

It is unnecessary to adopt a strained interpretation of subsection 173(11) in order to ensure that enforcement proceedings retain their remedial character. If, as in the present case, an alternative scheme is put forward which is not part of the matters stated in the enforcement notice as constituting a breach of planning control, but which the Inspector considers may well be acceptable in planning terms, he can follow the course which the Inspector adopted in the present case: allow the appeal under ground (g) and extend the period for compliance with the notice so that the planning merits of the alternative can be properly explored: see paragraph 7 (above). Local planning authorities usually issue enforcement notices as a last resort when persuasion and negotiation with the landowner has failed. It is open to a landowner who wishes to obtain planning permission for such an alternative scheme to apply for planning permission for that scheme at any time, whether before or after an enforcement notice has been issued. The local planning authority's power in section 70C to decline to determine applications for planning permission made after an enforcement notice has been issued applies only if granting the permission would involve granting permission "in respect of the whole or any part of the matters specified in the enforcement notice as constituting a breach of planning control."

I do not accept Mr Wills' submission that this approach to the ambit of ground (f) renders that ground of appeal otiose. In its earlier form, under the 1968 Act, ground (f) was clearly much narrower than ground (a): it was not concerned with the planning merits of the matters alleged to constitute a breach of planning control, a question of planning judgment, but with what was essentially a factual question – what steps were necessary to remedy that breach: see paragraph 20 (above). The inclusion of the second limb in ground (f) – that even if they do not remedy the breach, less onerous steps will suffice because they will remedy any injury to amenity caused by the breach - means that deciding an appeal under ground (f) may well involve an element of planning judgment, which is bound to overlap to a certain extent with the Inspector's judgment as to the wider planning merits under ground (a). That there is now a degree of overlap between the two grounds, (a) and (f), is recognised in the authorities relied upon by Mr. Wills: Tapecrown, Moore and Ahmed. It does not follow that ground (f) is otiose merely because there is now some overlap between the two grounds, in that injury to amenity is relevant under both grounds; nor does it follow that ground (f) is otiose because it cannot be used in conjunction with subsection 173(11) to secure for an alternative scheme a planning permission which is unobtainable under section 177(1)."

Conclusions