QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| HARGRAVE HOUSE LIMITED AND CHAIM REINER
|- AND -
|HIGHBURY CORNER MAGISTRATES COURT
LONDON BOROUGH OF ISLINGTON
Richard Drabble QC (instructed by London Borough of Islington) for the Defendant
Hearing dates: 08 February 2018
Crown Copyright ©
Mrs Justice Cheema-Grubb :
The notice provided as follows:
The alleged breach of planning control
Without planning permission, the installation of light-coloured rendering and white colour paint over existing brickwork on the premises on the land.
Reasons for issuing this notice
(ii) the rendering of the building elevations results in a detrimental impact on architectural integrity of the property and the character and appearance of the wider conservation area. The unauthorised development fails to preserve and enhance the character and appearance of St John's Grove conservation area…
What you are required to do to remedy the breach
(i) Remove the concrete render from all elevations of the premises, including all waste materials therefrom
(ii) repair any damage to the facing fabric of the building caused by taking step (i) with the materials to match existing."
"On or about 14 October 2015 [1st claimant] being the owner of [address] breached an Enforcement Notice… issued on 2 July 2015 in respect of unauthorised developments at [property]… by failing to comply with the remedial action required in…… of the Enforcement Notice, contrary to s.179 (1) and (2) of the Town and Country Planning Act 1990."
"On or about 14 October 2015 [2nd claimant] acting as a director of…… , which with your consent or connivance or attributable to your neglect breached an Enforcement Notice…… Contrary to s.331 read with section 179 (1) and (2) of the Town and Country Planning Act 1990."
"(1) did I err at paragraph 21 of my judgement in finding that the word "repair" in the enforcement notice, encompassed demolishing and rebuilding the walls in new/second-hand bricks?
(2) did I err at paragraphs 23 and 24 of my judgement in taking into account that the council's deputy team manager for conservation and design had no objection to the walls of the property being rebuilt with replacement bricks?"
"I take the view that the District Judge's decision not to ask that question of the High Court was entirely rational. The enforcement notice contemplates on its face the replacement of the bricks, and the claimant's discovery-on seeking expert advice as to how to comply with the notice-that bricks would need to be replaced cannot have come as a surprise to them. The expert's advice did not require "the entire demolition and rebuilding of a structure" as the claimants' state [this was from paragraph 25 of the Grounds]. The meaning of the word "repair" is context specific and there is no basis for review of the District Judge's decision not to consult the High Court on the point."
The statutory framework
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 paragraphs of section 171A (1) within which, in the opinion of the authority, the breach falls.
(2) 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.
(3) 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.
(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 discontinuing any use of the land or by restoring the land to its condition before the breach took place; or(b) remedying any injury to amenity which has been caused by the breach.
(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;(c) any activity on the land not to be carried out except to the extent specified in the notice; or the contour of a deposit of refuse or waste materials on land to be modified by altering the gradient or gradients of its sides.
(6) Where an enforcement notice is issued in respect of a breach of planning control consisting of demolition of the building, the notice may require the construction of the building (in this section referred to as a "replacement building") which, subject to subsection (7), is as similar as possible to the demolished building.
(7) [Not relevant]
(8) an enforcement notice shall specify the date on which it is to take effect and, subject to sections 175 (4) and 289 (4A), shall take effect on that date.
(9) An enforcement notice shall specify the period at the end of which any steps are required to have been taken or any activities are required to have ceased and may specify different periods for different steps or activities; and, where different periods apply to different steps or activities, references in this Part to the period for compliance with an enforcement notice, in relation to any step or activity, or to the period at the end of which the step is required to have been taken all the activity is required to have ceased.
(10) An enforcement notice shall specify such additional matters as may be prescribed, and regulations may require every copy of an enforcement notice served under section 172 to be accompanied by an explanatory note to giving prescribed information as to the right of appeal under section 174.
(11) Where –(a) 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(b) 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 70 3A 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.
(12) [Similar provision to ss.(11) in respect of replacement buildings.]
(1) Where, at any time after the end of the period for compliance with an enforcement notice, any step required by the notice to be taken has not been taken or any activity required by the notice to cease is being carried on, the person who is then the owner of the land is in breach of the notice.
(2) Where the owner of the land is in breach of an enforcement notice he shall be guilty of an offence.
(3) In proceedings against any person for an offence under subsection (2), it shall be a defence for him to show that he did everything he could be expected to do to secure compliance with the notice.
The judgement of the District Judge
"The submission relying on s.55 to posit that repair involves "works which …..do not materially affect the external appearance of the building" holds little weight in circumstances where that affect would be aimed at restoring its previous appearance in a conservation area. I find no difficulty with interpreting the wording of the EN and find on the fact of this case that "repair" encompasses the rebuilding of the walls with matching bricks if that proved necessary."
(1) subject to the following provisions of this act, in this act, except where the context otherwise requires, "development" means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.
[(1A) For the purposes of this Act "building operations" includes –
(a) demolition of buildings;
(c) structural alterations of or additions to buildings; and
(d) other operations normally undertaken by a person carrying on business as a builder.]
(2) the following operations for uses of land shall not be taken for the purposes of this act to involve development of the land –
(a) the carrying out for the maintenance, improvement or other alteration of any building of works which –
(i) affect only the interior of the building, or
(ii) do not materially affect the external appearance of the building,
and are not works for making good war damage or works begun after 5 December 1968 for the alteration of the building by providing additional spaces in it underground: …….
I do not find the claimants' reliance on Street v Essex County Council (1965) 193 EG 537 decided (on fore-runner sections to s.55) of any more assistance. Miss Murphy argues that even if it were a matter of fact and degree, the works required under the EN were well outside what would properly be characterised as repair. Mr Street owned a building which was due to be demolished. He obtained a stay of the order on the basis that he would undertake repairs in accordance with the local bye-laws. Although he started off the work intending to repair it the building had to be demolished down to its damp proof course to construct what the planning authority said was a new building. He was served with an EN requiring him to demolish the development because what he had done amounted to development rather than repair. He sought to argue that all he had done was repair the condemned building. His appeal against the EN failed. Lord Parker, giving the judgment observed that whether the works could fairly be said to amount to maintenance or were properly called reconstruction must be matter of fact and degree. In this case, the claimants' had been served an EN which, required them to deal specifically with the breach they were responsible for. Miss Murphy conceded that by s.173(5) an EN could require works that would otherwise require planning permission.