England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		4 December 2012

HH Judge Anthony Thornton QC:

Factual Background

1. Mr Anthony Williams is the owner of Woodrow Farm and the adjacent Shardeloes Farm both of which are located near Amersham, Buckinghamshire in the Metropolitan Green Belt and the Chiltern Area of Outstanding Natural Beauty. Woodrow Farm is an agricultural holding based on cattle rearing, arable production, equestrian activities and some forestry. It comprises 73ha of arable land, grassland, a Farm House, barn and Byre which are all Grade II listed buildings and a vineyard. Woodrow Farm also includes a group of buildings including, until 2008, an old dilapidated agricultural barn that had previously been used as a cattle shed but which more recently had been used primarily for storing hay and machinery and most recently had been used in conjunction with Woodrow Farm and its predominantly beef production activities.
2. In about 2000, it was decided to diversify Woodrow Farm and scale down its beef activities and it has since been run as a mixed farming unit. It was bought soon afterwards by Mr Williams who then operated his two farm complexes as separate planning units. However, he used the old barn in connection with the equestrian centre that he operated at Shardeloes Farm and in 2001 he made an unsuccessful planning application for permission to change the use of the old barn from its then agricultural use to a mixed farming and equine use
3. Between 2001 and 2006, Mr Williams applied to Chiltern District Council ("CDC") on three further occasions for planning permission to alter and convert the building and its use from agricultural to livery stable use. All three applications were refused by CDC and the second and third were also refused by an Inspector on appeal. However, the fourth which this case is concerned with was allowed on appeal. Mr Williams contends that he was attempting to implement the permission granted by that appeal when constructing the building that is now the subject of this appeal. CDC had accepted, when considering all four planning applications, that there was no objection in principle to the proposed conversion and re-use of the old barn. It had refused all of the applications because of the increased traffic movements that would be generated at the access junction with the adjacent main road. This was the only significant issue considered at the hearing of the appeal in 2006 and the Inspector overruled CDC's objections in concluding that development-generated traffic would be reduced by the conditions that were imposed on the use that the development was restricted to.
4. Thus, on 2 August 2006, Mr Williams was granted planning permission for the conversion, alteration, roof extension and change of use of the old barn. In about May 2008, he started work on his implementation of the planning permission. He removed the old roof covering and the original cladding and blockwork walls. By 6 June 2008, the old barn had been demolished save for the steelwork stanchions and some sheeting and blockwork which were still temporarily in place and which were removed soon afterwards. New steelwork was then added to accommodate the extension that was to be installed and to provide additional support for the new roof and upper floor slab that Mr Williams decided should be added to the development. The ground floor slab and a new mansard roof were then erected and the fitting out work started in September 2008. The structural details were approved by CDC's Building Control department and a CDC building inspector undertook periodic inspections for building control purposes.
5. In October 2008, CDC's principal enforcement officer Ms Shah became aware of complaints that Mr Williams was constructing a building which was not in accordance with the approved plans and was not being converted as intended. As a result, she visited the site in late October 2008 and then wrote to Mr Williams a letter dated 6 November 2008 which asked him to cease construction immediately. She understandably expressed the view that:

"… it is clear that the building is not being built in accordance with the approved plans. It would appear that the building is being completely rebuilt although the planning permission is for alterations, conversion and roof extension to an existing building. The building does not conform to the approved plans in terms of external appearance and height and a first floor element."

At that early stage, Ms Shah was correctly equating the breaches that were occurring with Mr Williams's failure to alter, convert and extend the old barn in accordance with the approved plans.

6. There followed unfruitful discussions between Mr Williams and Ms Shah in which he contended that the changes from the approved plans that had occurred had been necessitated because the approved development was not practicable and because no further permission was required for the changes. However, Ms Shah was not persuaded by these contentions. She warned Mr Williams that any further work that he carried out to complete the building that he was constructing would be carried out entirely at his own risk since CDC was considering enforcement action against him. She also advised him that he could, if he wished, make a planning application for permission to complete the new building that he was constructing but he was warned that such an application would be unlikely to succeed given its location in the Green Belt and in an Area of Outstanding Natural Beauty.
7. CDC resolved to take enforcement action on 4 December 2008 having concluded that the new building was unauthorised. In anticipation of that action, Mr Williams applied for planning permission for the as-built structure in an application dated 13 January 2009 two days before CDC prepared and issued its enforcement notice dated 15 January 2009 requiring the demolition of the new building. CDC withdrew the enforcement notice when it realised that Mr Williams had applied for retrospective planning permission for the new building. CDC refused permission in a notice dated 3 April 2009 and then issued a second enforcement notice dated 7 April 2009 requiring its demolition.
8. Mr Williams served two notices of appeal. In the first, he appealed against the enforcement notice on two different bases, the first of which was that the building that he had erected was not a new building but was instead a conversion and extension of the old and the second of which was that he should be permitted to alter the as-built building rather than being required to demolish it completely. In the second notice of appeal, Mr Williams appealed against the refusal of planning permission for the as-built building. The Inspector appointed to hear these appeals heard them both together and dismissed them both in a decision dated 25 February 2010. As a result, the Inspector confirmed both the enforcement notice, save for an inconsequential amendment to the notice's description of the appeal site, and the required remedy.
9. Mr Williams then issued the notice for this appeal on 3 June 2010 which was only concerned with the Inspector's confirmation of CDC's required demolition remedy. He contends that the Inspector made an error of law in failing to direct that the enforcement notice should be amended to permit him to amend the building so as to remedy the breaches of planning control being enforced. Lindblom J granted permission to appeal on 4 October 2011.

The 2006 permission

10. The permission, in the form it was granted, was for "alterations, conversion and a roof extension to an existing agricultural building so as to provide 10 stables, a tack room, a feed store, a hay store and an office for full livery at Woodrow Farm" in accordance with the terms of the application and the plans submitted with it and subject to seven conditions which included the following:

"2) The exterior of the development hereby approved shall only be constructed in the facing materials specified on the plans hereby approved or in materials which shall previously have been approved in writing by the local planning authority.

3) The development hereby approved shall only offer the livery of horses as part of a full livery operation and shall at no time offer the use of the stables for DIY livery services.

4) The livery stables hereby approved shall only be used to house a maximum of 10 horses at any one time."

11. The plans of the elevations and floor plan of the building showed that the profile of the old barn would be altered by the construction of an extension along its south east elevation, that its outward appearance would be transformed by the provision of a new roof covering, external walls and doors, that its floor plan would be enlarged and that it was being converted from a barn to a building accommodating 10 horse boxes and their associated tack and feeding rooms, an office and a WC. It was therefore clear that the proposed development also involved the extension, strengthening and renewal of the existing steelwork frame and the provision of new foundations, underslab drainage and sluicing out facilities and a new floor slab.
12. The statement of common ground submitted by the parties to the Inspector described the appeal site as being sited with a group of buildings owned by Mr Williams which were generally steel framed buildings clad in a combination of steel sheet and fibre cement roof cladding with some wooden cladding. Surrounding the farm yard were barns which had been or were being altered and converted to residential use although these did not form part of the farm complex.

Relevant Statutory Materials

13. The relevant statutory provisions, that are contained in the TCPA, are as follows:

171A – Expressions used in connection with enforcement.

(1) For the purposes of this Act-

(a) carrying out development without the required planning permission; or

(b) failing to comply with any condition or limitation subject to which planning permission has been granted;

constitutes a breach of planning control.

173 - Contents and effect of notice.

(1) An enforcement notice shall state-

(a) the matters which appear to the local planning authority to constitute the breach of planning control; and

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

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

(4) Those purposes are:

(a) 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 discounting any use of the land or by restoring the land to its condition before the breach took place; …

(5) An enforcement notice may, for example, require-

(a) the alteration or removal of any buildings or works;

(b) the carrying out of any building or other operations;

(7) A replacement building-

(a) must comply with any enactment imposed by any enactment applicable to the construction of buildings;

(b) may differ from the demolished building in any respect which, if the demolished building had been altered in that respect, would not have constituted a breach of planning control;

…

174 - Appeal against enforcement notice.

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

…

(f) 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;

Issues Arising In this Appeal

14. Mr Williams brings this appeal because he is required to demolish the new building he constructed in breach of planning control. If he demolishes it, he will be left with a vacant space on his land which he will not be entitled to build on unless he gets a fresh planning permission for a new building. However, since the site is in the Green Belt, he will have difficulty in obtaining a fresh permission. He contends that the requirement to demolish the new building was confirmed by the Inspector in a decision which was based on errors of law.
15. The following issues therefore arise:

(1) What is the effect of the site being located in the Green Belt?

(2) What was Mr Williams permitted to do in implementing the original planning permission?

(3) Did the permitted development involve the conversion of the old barn?

(4) Was the old barn demolished?

(5) What breach of planning control occurred?

(6) Was the enforcement notice defective?

(7) Is Mr Williams entitled to remedy the breach by altering the new building rather than being required to demolish it?

(8) What were the errors of law in the Inspector's decision?

(9) The order and the way forward.

Issue 1 - What is the effect of the site being located in the Green Belt?

16. Development in the form of a new building or the conversion and re-use of an existing building was restricted in the Green Belt in three ways that were relevant to this site. These restrictions arose from Planning Policy Guidance 2: Green Belts ("PPG2") which set out the framework for development within the Green Belt. CDC adopted the substance of these restrictions in its Local Plan that was adopted on 1 September 1997.
17. Conversion and re-use of existing buildings. The least restrictive part of this Green Belt policy permitted development in the Green Belt so as to achieve the re-use or conversion of an existing building, such as the old barn that was on the site originally (paragraph 3.7 of PPG2 and policy GB29 of CDC's Local Plan). PPG2 provided that, for such a building, its re-use would be considered to be development that was not inappropriate providing it did not have a materially greater impact than the present use on the openness of the Green Belt, that strict control would be exercised over the use of this policy for re-used buildings, that the buildings in question were of a permanent and substantial construction, that they were capable of conversion without major or complete reconstruction and that the form, bulk and general design of the buildings would be in keeping with their surroundings.
18. GB29 fleshed out the policy for permitted development applicable to the re-use or conversion of an old barn such as the one that is in issue in this case. These are particularly relevant provisions of this policy:

"The re-use of buildings in the Green Belt for commercial, recreational or other uses … will be permitted provided that:

…

(3) it is not "inappropriate" development. For the purposes of this Policy, developments will not be regarded as inappropriate if it complies with all of the following criteria:

(i) it should be clearly demonstrated to the Council by the applicant that the building has been substantially complete and has existed for many years before the date on which the application is made;

(ii) the building to be converted is of permanent and substantial construction and has a form, bulk and general design in keeping with its surroundings.

In connection with (i) above, in any case where the Council considers that the existing building has a significant adverse effect on the landscape in terms of visual amenity and improvements to the external appearance of the building would resolve this objection, proposed improvements should be included in the conversion application or a condition to secure the required improvements will be included in any planning permission granted.

(iii) The building should be in sound structural condition and the amount of new building work required to make the building suitable for the proposed purpose should not involve such substantial alterations and/or new building work as to amount to major reconstruction or be tantamount to the construction of a new building.

(iv) The council must be satisfied that the proposed use of the building would not have a materially greater impact than the existing use on the openness of the Green Belt and the purposes of including land in it in this connection:

(a) no extensions will be permitted;

(b) there should be no evidence of the proposed use outside the building which would conflict with the openness of the Green Belt or damage rural character and visual amenity;

(c) in development involving new building work and/or construction of a vehicle parking area, the design, materials and landscaping will be required to have no significant adverse visual impact in the open countryside;

(d) the proposed use should not generate traffic to a degree which would harm the open rural character of the locality or adversely affect the safety of highway users in the vicinity of the application site;

(e) there are no other planning objections which cannot be overcome by attaching conditions to planning permission."

19. These policy provisions had to be applied in a balanced way so as to support CDC's related policy of helping new enterprises and the provision of new jobs for new commercial, industrial and recreational use. In particular, attention was drawn in paragraphs 4.150 – 4.152 of GB29 to the benefits of finding alternative uses for buildings in appropriate circumstances so as to help farmers to diversify and so as to secure the maintenance of land use, the need to re-use existing buildings - particularly agricultural buildings, to assist in the diversification of the rural economy and for "employment generation" purposes particularly where the development had a gross floor-area greater than 300 square metres.
20. New buildings – agricultural and outdoor recreational purposes. The construction of new buildings for, amongst other categories, agricultural and forestry purposes and the provision of essential facilities for outdoor sport and outdoor recreation, was to be considered as not inappropriate. However, CDC's chief planning officer had considered that the development approved by the 2006 permission was a mixed agricultural and equestrian use so that, if that view was upheld, a similar new building would only be considered to be appropriate if it exclusively provided essential facilities for equestrian use and was no larger than essential for that use, neither of which were to be found to be applicable to the new building that had been unlawfully constructed nor in the building approved by the 2006 permission.
21. Other new buildings. Any new building which was not within the two limited excepted categories already referred to would be regarded as inappropriate development. Thus, an application to build a new building in the form approved by the 2006 permission or in the form as unlawfully built would not receive planning permission. This is borne out by the Inspector's decision dismissing Mr William's appeal from CDC's refusal to grant retrospective planning permission for the unlawfully constructed new building. The Inspector treated the appeal as being concerned with an application for permission for a new building in the Green Belt and, having applied the relevant Green Belt policies, dismissed the appeal because the proposed development was not of the exceptional kind that enabled permission to be granted for a new inappropriate development.
22. It follows that the original conversion and re-use scheme approved by CDC was one which was considered to amount to the conversion or re-use of the barn notwithstanding that it could not be undertaken without major reconstruction that involved the almost complete demolition of the existing structure and the provision of a building which was almost entirely newly constructed.
23. This planning permission and policy GD29. The detailed consideration of the re-use and conversion of the old barn over four applications and three appeals had eliminated any objection that the form and nature of the proposed conversion and re-use works did not comply with Green Belt policies and Local Plan policy GD29. The development on grounds which policy GD29 was designed to encourage, namely that it would encourage agricultural diversification and the provision of appropriate commercial activities and employment in rural areas. GD29 was a policy which did not have to be adhered to in every particular. In this case, the planning permission did not satisfy several aspects of policy GD29. Thus, it permitted an extension to the useable footprint of the old barn and it extended its internal floor area and the length and overall area of the roof even though policy GD29 suggested that conversion developments would not be permitted if they made provision for extensions. Moreover, the development, on any view, entailed significantly more use of new building work than was envisaged by the policy and it was permitted even though the old barn was not in a sound structural condition.
24. Conclusion. The development proposed by Mr Williams would not have obtained planning permission unless it had been treated as an appropriate conversion or re-use of the old barn. Furthermore, the development was permitted even though it involved several significant departures from the detailed provisions of policy GD29. No similar proposed development on an empty site in that location would have obtained planning permission in the absence of very special circumstances since it would not have been an inappropriate development in the Green Belt.

Issue 2 - What was Mr Williams permitted to do in implementing the original planning permission?

25. Introduction. The planning permission document was not in evidence but its operative terms and conditions and the five plans attached to it which had to be complied with were in evidence. It is noteworthy that the permission did not contain any condition limiting or directing the building method to be used, the sequence of work that should be employed or the parts of the existing structure that should be retained. It follows that the ordinary and natural interpretation of the permission was that, so long as the surface materials that were used were ones that had previously been approved by CDC and the overall profile and footprint of the building were constructed so as to provide an exact replica of the building as shown on the approved plans and that it was used in the approved manner, the completed development would conform to the 2006 permission.
26. CDC's view. The ordinary and natural interpretation of the terms of the permission was not one shared by Ms Shah in her advice to the planning committee or in her evidence submitted to both the Inspector and in this appeal. In summary, she contended that the many unauthorised departures from the approved plans were objectionable not only because they were contraventions of the planning permission but also because they amounted to the construction of a new building that replaced the old barn that had previously been unlawfully demolished. The work had not, in consequence, involved the conversion of the old barn but had instead been work that had involved the demolition of the old barn and then, as a second and subsequent activity, the construction of a new building.
27. All the departures from the approved plans that Ms Shah had identified in her advice to the planning committee were breaches of the 2006 permission, were unauthorised and were subject to enforcement. Moreover, her description of the building as being "tantamount to a new building" was clearly an acceptable one. However, she was incorrect in contending that it was necessary for the building that finally emerged to have been brought about by a process of converting the old barn and that a new-build which was a replica of the building shown on the approved drawings was not permitted. Ms Shah, in her witness statement submitted for this appeal, identified this aspect of her views with these words:

"The works had involved the original structure (cattle barn) being substantially demolished and therefore the resulting development could not comprise a re-use of the former building as that no longer existed."

28. Ms Shah suggested that too little of the original building had been used to enable the resulting work to be characterised as a building conversion. In particular, she suggested that only part of the original steelwork had been incorporated into the building and those parts that had been incorporated had been truncated and enclosed in concrete in order to strengthen them to provide support for the unauthorised first floor that had also been constructed. All this work was objectionable, she contended, because it was not undertaken to convert the building in any real sense, it was supplementary to the operational development that had occurred to produce a new building and it was not a necessary or fundamental part of the conversion of the original building.
29. Discussion. Nothing in the permission precluded the use of strengthened steelwork, a completely new set of steel members or a replica steel frame. The approved plans clearly involved the demolition of all or virtually all of the existing structure of the old barn since the external surfaces and the roofing materials, would have to be stripped away, new foundations and drainage and a new floor slab would have to be provided, new steelwork would be needed to accommodate the permitted extension and the existing rusty and weakened steel frame would require renewal, strengthening and replacement. Thus, the implementation of the planning permission would involve both the substantial demolition of the old barn building and the provision of what would be tantamount to a new building in its place.
30. Ms Shah had formed the view that the permission, in order to be implemented without breach, required the retention of substantial parts of the old barn. It followed that, on this view, replica new materials could only be sparingly used. She took this view because she considered that the permission was only authorising conversion works which could not by definition involve significant demolition or substantial new-build work. In truth, these objections had been disposed of by the approval, no doubt as a result of the balancing exercise which required building design and execution considerations to be balanced against employment and diversification considerations which, in this case, had resulted in a so-called conversion development that had few of the characteristics of a conversion.
31. Ms Shah's view would have been impossible to achieve unless the permission had contained extensive conditions which identified the parts of the old barn that were to be retained and provided details of the new slab, steelwork, drainage and foundations that were needed, a method statement describing how the works were to be carried out and a requirement that any alteration from these approved details had to be approved by the planning officer.
32. Conclusion. Mr Williams was permitted to undertake any work that was necessary to create an equine centre which, in its outward appearance and its conditions of use, conformed to the approved plans and conditions contained in the 2006 permission. He could also employ any suitable working method and, if he chose, demolish the old barn and replace it with a replica building constructed of new materials. The overriding requirement was that he had to provide a perfect replica of the approved building.

Issue 3 – Did the permitted development involve the conversion of the old barn?

33. Introduction. CDC contended that the 2006 permission was for the conversion of the old barn and that this permitted development was very different from the unauthorised new building development that was ultimately produced. It also contended that the conversion work that had been authorised involved the retention of a substantial part of the old barn with the consequent incorporation of much of it into the converted building that it contended was to be built.
34. Discussion. As I have already shown, CDC was in error in describing the permitted development as the conversion of the old barn. It was in fact a composite development that the planning permission described as being: "alterations, conversion and roof extension to an existing agricultural building to provide 10 stables, a tack room, feed store, hay store and office for full livery". It was therefore a mistake to contrast the new building that was produced with a conversion project, the contrast that should have been considered was between the new building that was produced with a new building created in a one-off complex operation to bring an old building into re-use that involved alterations, conversion, extension and change of use.
35. The planning permission had not been granted for a conversion but for the conversion and re-use of an existing agricultural building by the complex mix of activities that I have already listed. It had to be remembered that that permission had been granted by reference to the more relaxed requirements for permitting development in the Green Belt applicable when an old barn was being converted and re-used. The relevant policy permitted the re-use of old agricultural buildings in circumstances where the proposed development involved much more demolition and rebuilding than would normally be regarded as amounting to conversion work. As a result, this development was not a conversion in the conventional sense, particularly since its implementation would involve the substantial demolition of the old barn and its almost complete rebuilding using new materials. The development also involved the profile of the old barn being extended significantly, various significant alterations being made that involved the creation of new open areas, a number of windows and the provision of doors and its use being converted from agricultural to mixed agricultural and equine use.
36. The development was described in the way it was so as to bring it within the category of appropriate permitted Green Belt development that had been designed to enable old buildings to be re-used. Thus, the development involved a complex of various types of design and construction which had been devised to enable the building to be re-used in a manner which would enable the development to proceed in the Green Belt.
37. Conclusion. For these reasons, the permitted building was much more like a new building than a converted building. It was not a requirement of the planning permission that the building should be converted nor that any particular part of the old barn should be retained. What was however essential was that the completed building should have the appearance of a complete replica of the permitted development and that it complied in every respect with the design and appearance shown on the permitted plans and provided for in the attached conditions.

Issue 4 – Was the old barn demolished?

38. Introduction. Much argument in this appeal was addressed to the question of whether or not Mr Williams's work had involved the demolition of the old barn and, if it had, whether the demolition work had been undertaken within a single operation with the construction work or as a separate and discrete operation that had involved the demolition of the old barn followed by a subsequent and discrete operation that had produced the new building. These considerations were applied to the question of whether the development was one of conversion or instead one involving the construction of a new building without planning permission.
39. This discussion involved an esoteric consideration of whether the demolition of the old barn was an activity which had occurred at all, whether, if the barn had been demolished, it had only been "substantially demolished", whether demolition or substantial demolition required a separate planning permission and whether whatever had occurred evidenced a substantial departure from the 2006 permission or the construction of a new building which had not been permitted and whose construction was outside and unrelated to the 2006 permission. The arguments on these conceptual issues were elegantly presented but they had little relevance to the facts of this case. Since they were raised, however, I will consider them briefly.
40. This case. Mr Williams undertook the work carried out on site as one continuous operation and without any obvious demarcation between demolition work and construction or reconstruction work and in purported implementation of the 2006 permission. The work was carried out with appropriate consultation with, and the involvement of, CDC's building control department. As was always intended, the entire structure of the old barn, save for part of the steelwork structure, was demolished and removed. The steelwork structure was added to and part was replaced and the composite steelwork formed in this way was incorporated into the new build as its structural support. Thus, an essential element of the old building remained and was never removed or dismantled. As a matter of plain English, the old barn was not demolished and the resulting building, as well as the building that would have resulted had it been constructed in accordance with the approved plans, was or would have been a new building.
41. Ms Shah and the Inspector described the removal work that took place as "substantial demolition" and the building that had replaced the old barn as being "the construction or tantamount to the construction of a new building". However, substantial demolition or work that is tantamount to demolition is not "demolition" and a building that is tantamount to being a new building is not a new building.
42. Conclusion. The old barn was never demolished, at most it was "substantially demolished" since parts of the original steelwork were left in place and were incorporated into the new building. Furthermore, the work of removal, demolition and deconstruction formed an integral part of, and could not have been factually distinguished from, the work of construction or reinstatement. All this work was undertaken by Mr Williams as part of his attempt to implement the 2006 permission and no breach of that permission occurred until the occurrence of the first departure from the approved plans some weeks after the work had started. It would not have been possible to identify the moment in time when the work was transformed from the implementation of the 2006 permission into the implementation of an unauthorised new building.
43. However, none of these considerations had any bearing on whether the breaches particularised in the enforcement notice which were compendiously described as the creation of a new building had occurred. The way that the demolition work was carried out shows that the breaches of the 2006 permission that occurred resulted in the construction of a new unauthorised building and that these breaches occurred as part of an unsuccessful attempt to implement the 2006 permission.

Issue 5 - What breach of the planning control occurred?

44. Introduction. A fair description of the factual matters that CDC complained of is provided by Ms Shah's detailed advice to the planning committee to enable it to conclude that enforcement action should be started at its meeting held on 4 December 2008. She wrote:

"51.7 Further to officers' investigations, it appears that the building under construction has a similar footprint to the original building and located in the same position within the farmyard complex. However, all original block work has been removed and the building has been constructed with new footings and using cavity walling with a large number of apparent window and door openings which were not evident in the approved plans. The building as constructed has a uniform eaves height of around 5m and the steels for a mansard type roof structure are now in place. The building as constructed bears no visual resemblance to the approved plans.

51.8 Further, the building clearly intends to provide first floor accommodation^[1], given space within the building for a staircase and window openings at first floor level. The design of the approved building does not accommodate accommodation at first floor level. The internal floor space differs significantly from the approved plans and it is not apparent to officers what the proposed use of the building will be, noting the use of cavity walling. The building has been built up from the ground and therefore would require ramps to allow horses to access the building. …

51.9 On the basis of the information currently available to officers, it is not considered that the works are the implementation of planning permission CH/2005/088/AF. Given the considerable changes which have been made to the design and external appearance of the building the development clearly does not accord with the approved plans. … It therefore appears that this is not the conversion of an existing building and as such the works are not the implementation of [the planning] permission and indeed, this being the case, this permission is no longer capable of implementation."

45. I have underlined the parts of the advice which refer to complaints of non-conformity with the plans approved by the 2006 permission that were disputed. Even without these disputed details however, the new building was clearly and obviously both substantially different from and a clear departure from the approved plans.
46. The enforcement notice. The enforcement notice identified the alleged breaches of planning control as falling within section 171A(1) of the Town and Country Planning Act 1990 ("TCPA") as being the following:

"The matters which appear to constitute the breach of planning control

Without planning permission, the erection of a new building, the approximate position of which is shown cross hatched on the attached Plan B (and referred to in this notice as "the New Building")."

47. The enforcement notice also spelt out the matters that constituted the breaches of planning control were both the erection of a new building and the non-conformities between the as-built building and the approved plans. It stated:

"… it is acknowledged that the footprint of the new building remains broadly the same as approved under [the 2006 permission] but completely new foundations have been put in, new cavity wall have been built, a new steel has been installed and a new mansard roof structure put on the new building and whilst it is acknowledged that the steel supports of the original building have been enclosed with brickwork and are retained within the new building, such works have not been undertaken in order to convert the building as approved. There is also a new first floor which was not part of the approved scheme."

When the enforcement notice is read as a whole, it can be seen that it was making it clear that the breaches that it was based on where of two kinds, namely that caused by the construction of the new building and those caused by the construction of the new building in ways that amounted to non-conformity with the plans that had been approved by the 2006 permission.

48. The Inspector's decision. The Inspector in his decision letter, made the following findings in relation to the breaches that had occurred:

"6. … the previous building … appeared to be a rural structure with varying eaves height. However, I find that the building, as built, is materially different because of its overall design; scale; height and its internal configuration.

7. The 2006 approved plans show an extension to the previous building, which increased its volume and size. Also, alterations the previous structure's roof and walls were permitted, but the new mansard-style roof is totally new. The floor plans of the converted building do not show the large expanse of a first floor and separate veterinary areas. Some of the steel work has been re-used, but I agree with the Council that the building's sub and superstructure is new. Additionally, considerable lengths of new foundations and cavity walls have been constructed. In comparison, the new building's appearance is dissimilar because of its dominant built-form and layout.

8. … the previous building has been substantially demolished and a new one erected in its place.

9. … the new stable block's footprint is roughly similar to what was permitted in 2006, and … new external materials would have been used on the approved scheme. However, the conversion plans show the adaptation and alteration of an existing building, and not the erection of a new structure. As a matter of fact and degree, I find that the development cannot be reasonably called a conversion of the original building. The substantial demolition and the erection of a new building require planning permission and all of the building operations are unauthorised."

The Inspector was, in consequence, adopting the views of Ms Shah and the approach of the enforcement notice.

49. Discussion. These passages from Ms Shah's advice to the planning committee, the resulting enforcement notice and the Inspector's decision all neatly encapsulate the double-sided nature of the breaches complained of. Firstly, the factual matters complained of were details of the work which constituted unauthorised changes to the design and external appearance of the new building when compared with the 2006 permission. As such, they constituted a series of significant breaches of the obligation that all design details should conform to those shown on the approved drawings. Secondly, the nature and extent of these breaches was such that the new building was no longer capable of being described as a conversion of the old barn but amounted instead to the construction of a new building. However, the second complaint was not a separate complaint but was instead a helpful way of providing an overall description of the first series of complaints. It follows that Ms Shah and the enforcement notice were explaining that the non-conformities with the approved planes that had occurred which were so extensive and numerous that the resulting building was no longer of the type that had been described as a "conversion" in the 2006 permission.
50. Conclusion. The breach that created a new building had come about as a result of Mr Williams's unsuccessful attempts to implement the 2006 permission for the development of the old barn. These attempts had involved a series of changes to the approved design for the development of that building. The nature and extent of those changes had been such that the as-built building no longer had the appearance of the building that had approved as a conversion but instead had the appearance of a new building which would not have been approved as a conversion.

Issue 6 - Was the enforcement notice defective?

51. Introduction. In the first ground of appeal, it is contended that CDC did not provided a complete and full description of the breaches of planning control that it was relying on when describing the breaches being enforced against in the enforcement notice as being: "without planning permission, the erection of a new building" as opposed to: "without planning permission, the demolition of the old barn and the erection of a new building"^[2]. It was further contended that the Inspector should have dealt with the two appeals on the basis that the enforcement notice was seeking to enforce breaches described in this extended form rather than in the different and shorter basis set out in the enforcement notice. This technical procedural issue was raised on behalf of Mr Williams in an attempt to counter the respondents' submission that Mr Williams was not entitled to the alteration remedy because the breach that he was required to remedy was not connected with his failure to implement the 2006 permission in accordance with the approved drawings.
52. Discussion. It makes no difference whether or not the enforcement notice is amended in this way. This is because Mr Williams undertook the demolition and construction elements of the work as part of a single and seamless operation culminating in the completion of an unauthorised development. It therefore makes no difference to the respondents' arguments whether or not the work for the new building is characterised as "new building" work or as "demolition and new building" work since these two descriptions of the work are describing the same composite set of activities related to both the demolition and construction work that was performed on site.
53. Potential shortcoming in the enforcement notice. It follows that the notice was not deficient in not referring to Mr Williams's demolition activities. There is, however, a different defect in the enforcement notice that was not referred to in argument. In the description of the matters which appeared to CDC to constitute the breach of planning control^[3], there is no reference to the unauthorised changes which had been made to the design and external appearance of the approved building, the only reference is to the erection of the new building. The words used to describe the breach should have read as follows: "without planning permission, the erection of a new building that has resulted from the considerable changes which have been made to the design and external appearance of the building so that the development clearly does not accord with the approved plans"^[4].
54. The Inspector read the enforcement notice as only covering the breach of planning related to the erection of the new building and in consequence concluded that the breach that had to be remedied was unrelated to the 2006 permission. This was an error since, as I have already shown, this breach was another way of referring to the composite breaches arising out of the non-conformity of the new building with the approved drawings in the 2006 permission. As a result of this error, the Inspector failed to appreciate that the breaches that CDC required to be remedied could be satisfactorily remedied by altering the new building so that it became an acceptable replica of the altered, converted, extended and re-used building for which the 2006 permission had been granted.
55. Conclusion. The enforcement notice should be read as if the breach had been described as follows:

"Without planning permission, the erection of a new building that has resulted from the considerable changes which have been made to the design and external appearance of the building so that the development clearly does not accord with the approved plans"

This extended description of the breaches was by necessary implication included in the shorter description that had been used in the enforcement notice given the factual matrix which the enforcement notice was concerned with. However, the words are not sufficiently precise and they appear to have misled the Inspector so that it would have been preferable if the breaches had been described in this extended form.

Issue 7 - Is Mr Williams entitled to remedy the breach by altering the new building rather than being required to demolish it?

56. The relevant law. Development of the old barn required planning permission and any permitted development had to be undertaken in accordance with the terms of the permission that had been granted. A breach of planning control occurred if the development failed to conform to the approved details or if it was carried out without planning permission. Both types of breach would amount to the "carrying out of development without the required planning permission^[5]". The statutory objective of enforcement action was the remedying of all breaches of planning control and the obvious method, if this could be achieved, was by altering the non-conforming details of the development so that the building as a whole complied with the terms, including conditions and limitations, of any planning permission which has been granted in respect of the land.
57. The legislation spelt out the other types of remedial action that could be ordered. This included, in addition to the alteration of the development, the granting of retrospective planning permission for the unapproved building, the construction of a replacement building and the demolition of the development. These measures were not set out in any order of preference but the planning authority had to choose the remedial measure that was the least onerous remedy which could reasonably remedy the breach or breaches complained of. Demolition was, therefore, a last resort which would only be appropriate where the breach could not be remedied by alteration, replacement or the retrospective grant of permission.
58. A planning authority's enforcement powers were subject to two particular safeguards. Firstly, the matters which appeared to the local planning authority to constitute the breach of planning control had to be stated in the notice and if the local authority failed to spell those matters out fully, an Inspector could require a different remedy that was more appropriate for the breaches that had actually occurred. Secondly, the person on whom enforcement action had been served could appeal on the basis that the steps required by the notice to be taken exceeded what was necessary to remedy any breach of planning control that had occurred.
59. The Inspector's decision. The brief reasoning of the Inspector that deals with the required remedial action was as follows:

"42. I note that before the breach there was a building, but that structure has been substantially demolished. I have set out under my consideration of the ground (b) and (c) appeals^[6] that the erection of the new building is not authorised by the 2006 permission and the development does not amount to a conversion. Under this ground, [Mr Williams] contends that modifications to the building's external appearance are lesser steps. However, in the light of my findings on Appeal B^[7], I do not accept that modifications to the stable's fabric would be acceptable.

43. The Council told me that the purpose of the Notice is to remedy the breach, and that can only be achieved by the requirements set out in the Notice rather than by some form of under-enforcement as suggested. The requirements are no more than what is necessary to achieve the purpose of the Notice and are not excessive. The ground (f) appeal fails."

The Inspector's reasoning followed and adopted CDC's contentions which had been set out in the enforcement notice. It can be seen that the crucial step in this reasoning was the allegation that Mr Williams had demolished the old barn and had built a new building without planning permission and had taken these steps without any reference to the 2006 permission.

60. It can therefore be seen that the Inspector's decision and the respondents' contentions were both based on six inter-related contentions: (1) the old barn had been demolished as a separate operation; (2) a new building had been constructed; (3) that new building did not amount to a conversion of the old barn and was not authorised by the 2006 permission; (4) the 2006 permission could not be implemented so that any modification of the new building would be unacceptable; (5) the purpose of the notice was to remedy the breach which could only be achieved by demolition rather than by some form of under-enforcement; and (6) CDC's remedial requirements were no more than were necessary to achieve the purpose of the notice and were not excessive^[8].
61. The Inspector's reasoning. When considering what remedy should have been imposed to remedy the breach or breaches relied upon, the Inspector was required to consider all the breaches that were referred to in the enforcement notice and to impose a remedy that was reasonably required and did not reasonably exceed what was required to remedy each and every one of them.
62. The Inspector's reasoning in accepting that demolition was the appropriate remedy and in dismissing all other remedial measures was somewhat sparse and was only set out in his recitation of the steps that I have already set out and summarised. I will address each of those steps in turn.

(1) The old barn had been demolished as a separate operation.

This step had been put forward by CDC as a reason why the development was unauthorised and why demolition was the only appropriate remedy. As a matter of fact, however, the old barn had not been demolished and such demolition work as occurred was not undertaken as a separate operation but as an integral part of the development work that was carried out^[9].

(2) A new building had been constructed.

Although this was a finding of fact which was unimpeachable, it was not a reason for concluding that the breach resulting from the construction of the new building could not be remedied by alteration work. The building that would have been constructed had the approved so-called conversion work been fully carried out was also, in terms of the materials used and the method of construction, a new building and the work that would have been involved in implementing that permission was not conversion work^[10].

(3) The new building that was constructed did not amount to a conversion of the old barn and was not authorised by the 2006 permission.

The factual finding that the new building that was constructed did not amount to a conversion of the old barn is unimpeachable but it has no relevance to the issue that the Inspector had to determine. The Inspector does not make it clear whether he is referring to the work shown on the approved plans - which is not conversion work - or to work which would ordinarily be referred to as conversion work. If the former reference is intended, the statement amounts to an unimpeachable finding of fact whose effect is that what was built was not in conformity with the approved plans and was, in those respects a breach of planning control^[11]. If the latter, the finding is likewise unimpeachable but is irrelevant.

The statement that the new building was not authorised by the 2006 permission is an unassailable statement of law since this state of affairs was the direct consequence of the new building being the product of a series of breaches of planning control arising from the non-conforming design details incorporated into its construction^[12].

(4) The 2006 permission could not be implemented so that any modification of the new building would be unacceptable.

The Inspector gives no reason why the 2006 permission could not be implemented. His statement must have been based on one or other or both of two separate reasons, both of which are erroneous.

(i) The statement could have been intended to be an assertion or finding that it was not possible to remedy the breaches or non-conforming features of the development so as to alter it in a way that enabled it to conform to the approved development. That statement is erroneous in fact since the new building could readily be altered so that it complied with the approved plans.

(ii) The statement could have been one of law to the effect that the new building had come into being without reference to the 2006 permission and the breach it occasioned could not be remedied by alteration since any altered building would still contravene planning control. However, the only basis for considering the new building was as a building that had emerged from a failure to implement the 2006 permission in accordance with the terms of that permission^[13].

(5) The purpose of the notice was to remedy the breach which could only be achieved by demolition rather than by some form of under-enforcement.

This statement was incorrect as a matter of fact since the new building could readily be altered so as to conform to the approved plans. It was incorrect as a statement of law since the purpose of the statutory remedial measures was to remedy any breach that had occurred and the least onerous and most satisfactory way of achieving that objective was by altering the new building so that it conformed to those plans.

(6) CDC's requirements were no more than were necessary to achieve the purpose of the notice and were not excessive

No reasons were provided for this statement which is both perverse and erroneous. Since the new building can be readily altered so as to remedy all the breaches that have occurred, and since this is a far less onerous remedy than the demolition of the new building, it is a finding that amounts to an error of law. This is particularly so since it would be very unlikely that Mr Williams would obtain a new planning permission for a further new building of the kind envisaged by the 2006 permission to be built on the site of the demolished new building^[14].

63. It follows that the Inspector has provided no good or sufficient reason for his finding that demolition is the only appropriate method of remedying the breach or breaches that were addressed by the enforcement notice.
64. The correct approach in law. The reasoning that should have been applied may be summarised as follows:

(1) The policy which was applied in granting the 2006 permission was colloquially referred to as one concerned with the "conversion of buildings" but it actually allowed planning permission to be granted for the re-use of an old building in ways that would not normally be described as "conversion".

(2) The approved scheme in this case was not described as a "conversion scheme" but as a complex re-use scheme involving "alterations, conversion and roof extension to an existing agricultural building to provide 10 stables, a tack room, a feed store, a hay store and an office for full livery". It was, therefore, a complex amalgam of alterations, conversion, extension and re-use.

(3) Mr Williams always intended to implement the 2006 permission and when he started work in May 2008 and continued with the work, he was in both thought and deed seeking to implement it.

(4) The 2006 permission necessarily involved, in order to be implemented, the almost entire demolition of the old barn and its reconstruction in an altered, converted and extended state for use as an equine centre. Mr Williams was not restricted in the extent to which he used new materials nor was he required to preserve particular parts of the old barn by incorporating them into the finished building. What he was required to do was ensure that the completed development conformed to and was a perfect replica of what was shown on the approved plans and, for the new facing materials, he was required to use materials that first been approved by CDC.

(5) The finished development was, therefore capable of being "new" in the sense that the old barn could have been demolished in its entirety, all the materials used in the finished building could have been new and no part of the old barn need have survived.

(6) Mr Williams initially complied with the terms of the 2006 permission. He only first departed from its terms, and committed or potentially committed the first breach of that planning permission, when the first non-conformity with the approved plans occurred, probably in about July 2008 some 3 months or more into the building project.

(7) The old barn was, in any event, not demolished but was only substantially demolished and the stripping, demolition and removal work that took place was integrally bound up with the construction work so that all these activities formed a seamless and overlapping series of building activities that were undertaken as part of an overall development.

(8) Each of Mr Williams's decisions that led to each non-conforming detail in the finished development arose from a mistaken but genuine belief that he was entitled to undertake each such change of detail without first obtaining CDC's permission or a new or amended planning permission.

(9) When CDC considered the reported breaches, it decided to enforce against them on the basis that they constituted breaches of the 2006 permission and that these breaches were so numerous and extensive that the development appeared to be a new building for which there was no planning permission.

(10) The description of these breaches as amounting to the building of a new building was a graphic and helpful way of describing the totality of the incidents of non-conformity with the approved plans in the 2006 permission and the breach, as described in that way, was the same breach as had been committed by the totality of the individual breaches arising from all the individual incidents of non-conformity that had occurred.

(11) There was and is no physical impediment to the finished development now being altered so that it conforms in all respects with the plans and conditions of the 2006 permission. This alteration would not amount to the implementation of the 2006 permission which cannot any longer be implemented but it would be a permitted remedy as provided for by section 173(4)(a), 173(5)(a) and 173(4)(b) of the TCPA. This is because the new building arose out of, and was caused by, the myriad of individual non-conforming breaches committed in an unsuccessful attempt to implement that planning permission.

(12) It also follows that although CDC could require the complete demolition of the new development, it could only do so if there was no other way of altering or rebuilding the new building so that it complies with the terms of the 2006 permission. This conclusion results from an application of section 173(4)(a) of the TCPA.

65. It follows that the enforcement notice was issued in order to address breaches of the 2006 permission and any consideration of remedies first had to consider whether it was possible to alter or rebuild the new building so that it had the appearance and was a replica of the development approved by that scheme.
66. An alternative approach. Even if the chain of reasoning that I have set out above is erroneous and the Inspector was correct in considering that the only breach to be considered was the construction of a new building in the Green Belt without permission, he was still required to consider the remedy of altering the new building so that it conformed to the 2006 permission. This was because section 173(3) of the TCPA provided:

"An enforcement notice shall specify the steps which the authority requires to be taken in order to achieve … the purpose … of remedying the breach by making the development comply with the terms (including conditions and limitations) of any planning permission which has been granted in respect of the land …"^[15].

67. Alterations made to the new building which transformed it into an exact replica of the permitted building would obviously be remedial action which had the effect of "making the development [i.e. the new building] comply with the terms (including conditions and limitations) of any planning permission which had been granted in respect of the land [i.e. the 2006 permission]". For the reasons already given, such compliance could be achieved since all the non-conforming features could be eradicated and an exact replica of the permitted building could thereby be produced. Such steps would also comply with CDC's policy of bringing disused agricultural buildings back into re-use for commercial purposes in an appropriate Green Belt manner.
68. Mr Williams did not seek a section 174(f) remedy from the Inspector. The respondents contended that Mr Williams did not seek a section 174(f) remedy of altering the new building since he never put before the Inspector details of the work that would be needed to enable him to exercise that remedy. It is clear that, as a matter of fact, that was not the case since Mr Williams submitted three different outline schemes for this purpose to the Inspector. He wanted a scheme to be adopted which removed the objectionable features from the new building but which departed in acceptable and what he contended were insubstantial ways from the 2006 approved plans. Furthermore, as a final fall-back consideration, he sought a remedy which required him to reinstate approved plans in their entirety.
69. The Inspector never considered these three schemes or the fall-back reinstatement option because he did not consider that such a remedy was open to Mr Williams and because he accepted CDC's contention that the only way that the breach could be remedied was by the demolition of the new building. He gave no reasons for this conclusion and must have reached it because he, like CDC, did not regard any form of alteration or rebuilding as being a remedy that was available to Mr Williams.
70. It would also appear that CDC was not prepared to consider any of Mr Williams's proposed remedial schemes unless he first paid the fee for each of the four schemes that was appropriate for a new application even though it was being asked to consider each scheme as a possible lesser remedy to remedy enforcement action rather than as a new scheme.
71. Conclusion. Mr Williams is entitled to apply for, and have considered, a remedy under section 173(4)(a) of the TCPA, namely a remedy involving the alteration or rebuilding of the new building so that the resulting building conforms to the terms of the 2006 permission or to any agreed variant of that permission. Unless it is physically impossible to implement that remedy, Mr Williams is entitled to remedy the breaches in that way

Issue 8 - What where the errors of law in the Inspector's decision? The Inspector erred in law in finding that the remedy of altering the new building so that it conformed to the terms of the 2006 permission was neither available nor appropriate. In reaching that conclusion, he failed to give effect to sections 173(1), (3), (4)(a) and (5) and 174(1)(a) of the TCPA. As a result, he failed to give effect to the only reasonable conclusion that he could have come to which was that that was the remedy of altering the new building should be imposed in the absence of compelling reasons why that remedy was impractical or incapable of achievement.

Issue 9 – The order and the way forward

72. I will make an order in an appropriate form allowing the appeal. The effect of my order will be that the appeal is remitted to the Secretary of State to reconsider his decision on ground (f) in the light of this judgment. It is to be hoped that Mr Williams and CDC can agree upon the terms of the work that is to be required in the alteration of the new building and the timescale for its execution so that an agreed proposal can be placed before the Inspector. In considering that possible agreed proposal, the parties should bear in mind that Mr Williams is entitled to apply to the Inspector for a decision that permits him to alter the new building to one which is not an exact replica of the permitted development but that he cannot use that opportunity to seek a substantial variation in its terms. If agreement cannot be reached, the Inspector will have to decide whether to permit the remedy of alteration and, if so, what work and details will be permitted to remedy the breaches identified by the enforcement notice.

Overall Conclusion

73. As a result of the Inspector's original appeal decision, Mr Williams was left in the position of having no building on the site of the old barn with only limited prospects of obtaining planning permission for a new building to be constructed there, This is because any further application would have to be tested against the Green Belt development policies applicable to new buildings. This is a surprising result since everyone who have been concerned with the future of the old barn have been in agreement that that building was suitable for re-use for commercial purposes. It is obvious that Mr Williams made a regrettable and expensive mistake in constructing the new building in breach of planning control. However, the policy of enforcement is to place those responsible for breaches of planning control in the position that they would have been in had they not made the sort of mistake that Mr Williams made in this case. In other words, common sense suggests that he should be permitted to rectify his mistake by undertaking alteration work in order to produce the building that everyone had previously accepted was appropriate. In this case, as I have found, the law accords with common sense.

HH Judge Anthony Thornton QC

Note 1    The passages underlined describe perceived non-conforming features of the new building which did not appear to be unauthorised departures from the approved plans. Thus, new footings and cavity walling were not prohibited nor was a first floor for storage purposes that was constructed under a roof of the approved profile without altering the approved external appearance of the building.    [Back]

Note 2    The words underlined are the words that it was contended on behalf of Mr Williams should have been added by the Inspector into the enforcement notice so that it correctly described the matters which CDC considered to have constituted the breach.    [Back]

Note 3    See section 173(1)(a) of the TCPA set out in paragraph 13 above which uses this wording.    [Back]

Note 4    The underlined words are those that were used by Ms Shah in her report to the planning committee that led to the decision to serve the first enforcement notice. The second enforcement notice was in similar terms save for minor amendments that were made to enable its wording to mesh in with the wording of the application for retrospective planning permission for the new building.     [Back]

Note 5    Section 171A(1)(a) of the TCPA, paragraph 13 above.    [Back]

Note 6    Mr Williams appealed the enforcement notice on the grounds that the matters being enforced against had not occurred (ground (b)) and that those matters (if they had occurred) did not constitute a breach of planning control (ground (c)).    [Back]

Note 7    The appeal against the refusal to grant retrospective permission for the new building and the findings that that development would constitute unacceptable development in the Green Belt.    [Back]

Note 8    The Inspector did not rely on step (1) which was introduced as a result of CDC’s reliance on this step as one of the reasons for serving the enforcement notice. It is therefore an additional step to, and not a cumulative step in, the Inspector’s reasoning.     [Back]

Note 9    See paragraphs 38 – 43 above.    [Back]

Note 10    See paragraphs 33 – 37 above.    [Back]

Note 11    See paragraphs 44 – 50 above.    [Back]

Note 12    See paragraphs 44 – 50 above.    [Back]

Note 13    See paragraphs 44 – 50 above and paragraph 64 below.    [Back]

Note 14    See paragraphs 23 - 24 above.    [Back]

Note 15    Sections 173(3) and (4)(a) of the TCPA, see paragraph 13 above.    [Back]