Oates v Secretary of State for Communities and Local Government & Anor

Factual and Procedural Background

The appellant, Plaintiff, appealed against an order dismissing an application and appeal challenging decisions of an inspector appointed by the Defendant Secretary of State for Communities and Local Government. The inspector had dismissed appeals against an enforcement notice issued by the interested party, Company A, and Company A's refusal of planning permission for development on a site formerly occupied by three chicken sheds at a location in The City. The enforcement notice, issued in August 2016, alleged a breach of planning control by the erection of three "new buildings" without planning permission and required their complete demolition. Planning permission for the development of eight residential units had been refused earlier that year. Appeals under relevant sections of the Town and Country Planning Act 1990 were heard by the inspector in April 2017, with a decision issued in June 2017. The High Court deputy judge dismissed the challenge to the inspector's decisions, and the Plaintiff was granted permission to appeal to the Court of Appeal.

Legal Issues Presented

1. Whether it was wrong in law for the inspector to uphold an enforcement notice requiring the complete demolition of three "new buildings" that incorporated parts of previously existing buildings on the site.
2. Whether the inspector erred in concluding that the works constituted the erection of "new buildings" rather than lawful retention or conversion of existing buildings.
3. Whether the enforcement notice requirements exceeded what was necessary to remedy the breach of planning control (i.e., whether there was "over-enforcement").
4. Whether the inspector failed to properly consider lawful use rights or permitted development rights attached to parts of the original buildings.
5. Whether the inspector erred in refusing to vary the enforcement notice to allow reinstatement works rather than complete demolition.

Arguments of the Parties

Appellant's Arguments

• The enforcement notice was excessive as it required demolition of buildings incorporating lawful parts of the original structures, constituting "over-enforcement".
• The inspector failed to correctly identify the precise extent of the breach of planning control and did not properly consider what was necessary to remedy the breach.
• The original buildings were not completely demolished; parts remained and should be protected under the statutory definition of "building" including parts thereof.
• The inspector should have exercised the power under section 176(1) of the 1990 Act to vary the notice to avoid injustice.
• The principle from Mansi v Elstree Rural District Council should apply analogously to protect lawful parts of the development from enforcement.
• The inspector failed to consider that some operational development was within permitted development rights and that lawful use rights under section 57(4) of the 1990 Act would be lost by complete demolition.
• The inspector erred in relying on works not yet undertaken and in mischaracterizing the buildings as "new buildings".

Respondent's Arguments

• The inspector correctly found as a matter of fact and degree that the buildings were "new buildings" despite incorporating some fabric of the original buildings.
• The enforcement notice was properly issued and the requirements to demolish were proportionate and necessary to remedy the breach of planning control.
• The principle in Mansi does not apply outside the context of change of use and does not protect operational development.
• The inspector did not err in law or fact and her findings were not Wednesbury unreasonable.
• The statutory scheme provides appropriate safeguards against over-enforcement, and the inspector correctly applied the law.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully reviewed the inspector's factual findings and her application of the statutory scheme under the Town and Country Planning Act 1990. Central to the analysis was the question whether the buildings on the site were "new buildings" or merely retained original buildings with some additions or conversions. The court accepted the inspector's detailed findings that the original buildings had been largely demolished and the remaining elements were fully integrated into new structures, rendering the buildings, as a matter of fact and degree, "new buildings".

The court emphasized that the statutory definition of "building" including parts thereof did not preclude a finding of new buildings where remnants of old structures were incorporated but the original buildings ceased to exist as independent entities. The court found no error in the inspector's rejection of the appellant's contention that the enforcement notice was overbroad or that lawful use rights survived in the new buildings. The principle from Mansi was held inapplicable to operational development of this nature, supported by authoritative case law.

The inspector's refusal to vary the enforcement notice to allow reinstatement rather than demolition was justified by the lack of precision in the appellant's proposals and the statutory limits on varying enforcement notices. The court found the inspector's exercise of planning judgment reasonable and lawful, with no Wednesbury unreasonableness or misdirection on the law. The inspector's findings were consistent, comprehensive, and supported by evidence, and the court declined to re-evaluate factual matters on appeal.

Holding and Implications

The Court of Appeal DISMISSED the appeals.

The court upheld the inspector's decision that the enforcement notice was validly issued and that the buildings on the site were "new buildings" requiring demolition to remedy the breach of planning control. The appellant was not deprived of any lawful rights because the original buildings no longer existed as such, and no lawful use rights survived in the new buildings. The enforcement notice's requirements were proportionate and lawful. No new precedent was established; the decision affirms established principles concerning the assessment of whether buildings are "new" or retained structures and the limits of enforcement notice variation under the statutory scheme.