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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Williams v Secretary of State for Communities and Local Government & Anor [2013] EWCA Civ 958 (26 July 2013) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/958.html Cite as: [2013] EWCA Civ 958

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
HHJ Thornton QC (sitting as a Deputy High Court Judge)
[2012] EWHC 3466 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		26th July 2013

Lord Justice Beatson :

Introduction

1. These appeals concern an enforcement notice under the Town and Country Planning Act 1990 ("the Act") issued on 6 April 2009 by the Chiltern District Council ("the Council") and upheld by an Inspector appointed by the Secretary of State for Communities and Local Government ("the Secretary of State") in a decision dated 25 February 2010. It concerns a building on Woodrow Farm, an agricultural holding located near Amersham in Buckinghamshire. Planning permission was granted in 2006 to convert a barn to provide ten stables, tack room, a feed store and an office. The enforcement notice and the Inspector's decision required the demolition of what the Inspector found to be a new building. It was common ground before the Inspector that the building work was not in accordance with the plans and did not implement the planning permission. Before the Inspector one of the issues was whether, as the developer contended, the development was the conversion of an existing building or, as the Council contended, it constituted the construction of a new building.
2. On 5 December 2012 HHJ Thornton QC, sitting as a Deputy High Court Judge allowed an appeal pursuant to section 289 of the Act, quashed the Inspector's decision, and remitted the matter to the Secretary of State for redetermination. The Secretary of State and the Council appeal against the Deputy Judge's order. Their case is that he failed to respect the Inspector's statutory role as the primary decision-maker on questions of fact and degree, wrongly became embroiled in questions of planning policy, and adopted an approach to the construction of an enforcement notice which risked undermining the certainty that is required in such notices.
3. The Respondent, Mr Williams, is the owner of Woodrow Farm. His case, advanced on his behalf by Mrs Townsend, is that the Inspector's decision erred in law because requiring demolition of the building exceeded what was necessary to remedy the breach of planning control, and that the Inspector failed to give adequate reasons for his decision. It is striking that Mrs Townsend's written and oral submissions did not seek to defend the judge's approach and reasoning, but contended that the order he made was justified because of the errors made by the Inspector. She submitted that the most that could be required by the Council and the Inspector was the alteration of the existing building to make it conform to the planning permission granted or its restoration to its pre-existing state, although she accepted the second option would not have been a practical way forward. There was also a cross-appeal. It was submitted on behalf of Mr Williams that the Deputy Judge erred in concluding that the specified breaches of development control had in fact occurred.

The background

4. Woodrow Farm is within the Metropolitan Green Belt and the Chiltern Area of Outstanding Natural Beauty. On 2 August 2006, after a number of unsuccessful applications, Mr Williams was granted planning permission on appeal in respect of the barn. The planning permission was for alterations, conversion and a roof extension and use of the barn to provide ten stables, tack room, feed store, hay store, and an office for liveries in accordance with the terms of the application and plans submitted. Work commenced in about May 2008. By October 2008 the Council had become aware of complaints that Mr Williams was constructing a building which was not in accordance with the approved plans. An officer of the Council visited the farm in late October and, in a letter dated 6 November 2008, asked Mr Williams to cease construction immediately.
5. In January 2009 Mr Williams applied for retrospective planning permission for "retention and completion of building for livery and agricultural storage purposes and demolition of cattle building". That application was refused by the Council in a notice dated 3 April 2009, three days before the enforcement notice which has given rise to these proceedings. An earlier enforcement notice, dated 15 January 2009, also requiring the demolition of the new building, was withdrawn by the Council when it became aware of the January 2009 application for retrospective planning permission.

The enforcement notice

6. The April enforcement notice identified the matters which appeared to the Council to constitute breaches of planning control as: "without planning permission, the erection of a new building, the approximate position of which is shown cross-hatched on the attached [plan]…". The enforcement notice required Mr Williams to "demolish the new building". The reasons for issuing the enforcement notice are stated in section 4. For present purposes, what is relevant is the Council's assessment that "having regard to the large size, scale and mass of the new building, and the assessment of the Council's Independent Equestrian/Agriculture Consultant in respect of the owner's recent planning permission", the Council did not consider that the new building provided "essential facilities, and as such it has to be considered as inappropriate development within the Green Belt": paragraph 2.
7. Paragraph 2 of the reasons also stated that, while the 2006 planning permission granted on appeal was a material consideration, "the building works which have taken place in connection with the new building are not the implementation of that permission and the permission is no longer capable of implementation". It was also stated that the works:

"which have taken place are clearly the construction of a new building or tantamount to the construction of a 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".

In the light of this and "a new first floor which was not part of the approved scheme", the notice stated that the development "must therefore be assessed as a new building within the Green Belt, which does fall within any of the categories of appropriate development".

8. Paragraph 3 of the reasons for the notice referred to the fact that the new building was much higher and bulkier than the approved conversion and much more visible when viewed from Coleshill or the A404 because of its increased height and bulk. That increased visibility was considered to be harmful to the open and rural character of the locality and the visual amenity of the Green Belt.

The appeals and the statutory framework

9. Mr Williams appealed to the Secretary of State. One appeal ("Appeal B"), pursuant to section 78 of the Act, was against the refusal of planning permission for the building. The other ("Appeal A"), pursuant to section 174 of the Act, was against the enforcement notice.
10. For the purposes of the present appeal, it is only necessary to set out or summarise the material provisions of the Act concerning enforcement notices. By section 173 of the Act, an enforcement notice is required to state "the matters which appear to the local planning authority to constitute the breach of planning control", and whether the breach of planning control consists of carrying out development without the required planning permission (see section 171A(1)(a)) or of failing to comply with any condition or limitation subject to which permission has been granted (section 171A(1)(b)). By section 173(2) a notice complies with section 173(1)(a) if it enables any person on whom a copy of it is served "to know what those matters" are. The reference is to the matters which appear to the local planning authority to constitute a breach of planning control.
11. By section 173(3) and (4) respectively, an enforcement notice must specify the steps which the authority require to be taken in order to achieve the specified purposes. The purposes (see section 173(4)(a)) are remedying the breach (i) by making any development comply with the terms of any planning permission which has been granted, (ii) discontinuing any use of the land, or (iii) restoring the land to its condition before the breach took place. By section 173(6), where an enforcement notice is issued in respect of a breach of planning control consisting of demolition of a building, "the notice may require the construction of a building … which … is as similar as possible to the demolished building" (emphasis added)
12. The grounds upon which an appeal may be made against an enforcement notice are set out in section 174 of the Act. It suffices to identify the grounds pursued by Mr Williams in this case. His appeal form included an appeal on the ground contained in section 174(2)(a), that "planning permission ought to be granted" for the development. The appeal on this ground, however, lapsed because (see section 177(5A)) the requisite fee had not been paid. Its substance was pursued via the section 78 appeal. It was, however, submitted on behalf of the Secretary of State and the Council that, in the light of the decision in Tapecrown Ltd v Secretary of State [2006] EWCA Civ 1744, [2007] 2 P & C R 133, the absence of a ground (a) appeal had an important impact on the extent of the options available to the Inspector.
13. There were three other grounds of appeal against the enforcement notice. The first two, pursuant to section 174(2)(b) and (c), were that the breaches of development control specified had not occurred, or that if they had occurred, they did not constitute a breach of planning control. Before the Inspector, Mr Williams' case was, as I stated at [1] above, that he had not, as the notice specified, erected a new building, but that he had modified an existing building. He also appealed on grounds (f) and (g) of section 174(2). The ground (f) appeal contended that the steps required by the notice, demolition of the building, exceeded what is necessary to remedy any breach of planning control. The ground (g) appeal contended that the period of four months specified in the notice fell short of what should reasonably be allowed.
14. By section 176 of the Act, on an appeal under section 174 the Secretary of State and an Inspector appointed by him is empowered to "correct any defect, error or misdescription in the enforcement notice" or to "vary the terms of the enforcement notice" if he is satisfied that the correction or variation will not cause injustice to the appellant or the local planning authority.

The Inspector's decision

15. The Inspector dismissed Appeal A against the enforcement notice. I deal with the appeal on ground (f) at [21] below. On grounds (b) and (c), it was common ground before him that the 2006 planning permission had not been implemented. Mr Williams' evidence (see DL, [6]) was that it was not practical to implement it. The Inspector found (DL, [6]) that "the building, as built, is materially different because of its overall design, scale, height and its internal configuration". The decision letter referred to a "mansard-style" roof which was totally new, and to the fact that the floor plans with the application did not show the large expanse of a first floor and separate veterinary areas: DL, [7]. The Inspector found (ibid.) that "considerable lengths of new foundations and cavity walls" had been constructed and that the new building's appearance was "dissimilar because of its dominant built-form and layout". He took the view (DL, [8]) that "the previous building has been substantially demolished and a new one erected in its place".
16. Although the new building's footprint was roughly similar to what was permitted in 2006, the Inspector stated (DL, [9]):

"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." (emphasis added).

His conclusion was that the matters alleged in the enforcement notice occurred as a matter of fact, and they constituted a breach of planning control. Accordingly, he dismissed the appeals against the enforcement notice on grounds (b) and (c).

17. The Inspector also dismissed Appeal B, the section 78 appeal against the refusal of retrospective planning permission. He decided that the development would be an inappropriate development in the Green Belt, would harm the openness of the Green Belt, would have an injurious effect on the quality and natural beauty of the landscape and countryside of the Area of Outstanding Natural Beauty, would not preserve the setting of the Grade II listed buildings, and was therefore not acceptable: DL, [11] – [41].
18. Mr Williams did not appeal to the High Court against the Inspector's decision dismissing Appeal B. But, since the Inspector relied on his findings on that appeal when considering the section 174(2)(f) ground of Appeal A against the enforcement notice, it is necessary to summarise his material findings on Appeal B. The decision letter states it was undisputed that the mainly agricultural use of Mr Williams' land preserved the openness of the Green Belt. It contains a finding that the building with its livery business "has little or no relationship with the predominantly agricultural use of Woodrow Farm", and records that the Inspector was not satisfied that the location for a full livery business is necessarily dependent upon the use of the land at Woodrow Farm.
19. The Inspector found (DL, [22]) that "the increase in bulk and mass [of the new building] reduces the openness of the Green Belt" and, although the footprint of the building is similar to what was approved in 2006, "the new building's siting has a significant impact on the openness of the Green Belt because of its materially larger scale". The decision letter referred (DL, [25]) to the visibility of the development from the surrounding area and (DL, [26]) found that the building "does not assimilate into the countryside because of its bulky appearance, due to the roof's effect on the skyline" and (DL, [32]) that "the building has a jarring effect because of its blocky form" and "appears over-dominant because of its bulk". The mansard roof and skylights were found (DL, [32]) to be atypical of the form and shape of nearby buildings, and intrusively large.
20. The Inspector considered whether modifications to the roof form and external appearance of the building could overcome the objections. He stated (DL, [34]) that these modifications would materially alter the design of the building and the options advanced would require a separate planning application because they would be significantly different to what has been built and what has been determined. He stated that he considered the possible fallback position because of the 2006 planning permission but (DL, [35]) that the 2006 permission was determined on the basis that the development related to a change of use of an existing building. He gave little weight to the fallback view for that reason "because the previous building has been substantially demolished and a new one erected in its place".
21. Because, when dealing with Mr Williams' appeal on the section 174(2)(f) ground, the Inspector cross-referred to his findings on the section 78 appeal, he was able to deal with it briefly. As to the submission that the appeal on the section 174(2)(f) ground should be allowed because the steps required exceeded what was necessary to remedy any breach of planning control, the Inspector stated that the purpose of the enforcement notice was to remedy the breach of planning control and that this required compliance with the terms of the enforcement notice. He stated (DL, [42]) that, in the light of his findings on the section 78 appeal (summarised at [18] – [19] above), he did not accept that modifications to the building's external appearance and fabric would be acceptable.

The section 289 appeal and the judgment below

22. By section 289(1) of the Act "where the Secretary of State gives a decision…on an appeal…against an enforcement notice the appellant or the local planning authority or any other person having an interest in the land to which the notice relates may…appeal to the High Court against the decision on a point of law…". It is clear that an appeal under section 289 is limited to points of law, and is not an opportunity for a review of the planning merits of an Inspector's decision: see ELS Wholesale (Wolverhampton) Ltd v Secretary of State for the Environment (1987) 56 P & C R 69; Clarke v Secretary of State for the Environment [1992] 3 PLR 146; and, albeit in respect of a challenge under section 288 of the Act, R (New Smith Stainless Ltd) v Secretary for the Environment, Transport and the Regions [2001] EWHC 74 (Admin) at [6].
23. The principal issues before the Deputy Judge were whether the alleged breach of planning control in the enforcement notice should have been formulated to include the substantial demolition of the existing building as part of the single breach of planning control which had occurred. The second issue was whether, as was submitted on behalf of Mr Williams, the requirement to demolish the new building was excessive. It was submitted on behalf of Mr Williams before the Deputy Judge that the confirmation in the Inspector's decision of the requirement in the enforcement notice to demolish the new building was based on an error of law.
24. Judgment was reserved by the Deputy Judge for almost five months. The judgment is full, and carefully constructed. The judge stated (judgment, [14]) that the appeal was brought by Mr Williams because he was required to demolish the new building he constructed in breach of planning control, which, if he did, would leave him with a vacant space on his land on which he would not be entitled to build unless he obtained a fresh planning permission but, since the site is in the Green Belt, he would have difficulty in obtaining such a fresh permission. At the end of his judgment (see [73]), the judge stated that leaving Mr Williams 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 was "a surprising result since everyone who [has] been concerned with the future of the old barn [has] been in agreement that the building was suitable for re-use for commercial purposes". The judge also stated that "since 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", "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".
25. The Deputy Judge (judgment, [15]) identified nine issues for decision:

(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 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; and

(9) The order and the way forward.

It was common ground that the judge's formulation of the issues does not reflect the way the case was presented to him and the submissions advanced on behalf of the parties. It is clear that, in relation to the enforcement notice and potential defects in it, the Deputy Judge consciously departed from the submissions: see, for example, judgment, [53].

26. I summarise the material parts of what the judge stated in relation to issues (1) – (7) and (9) in the next section of this judgment. The judge's conclusion on issue (8), which is set out in an un-numbered paragraph between [71] and [72], is:

"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)^[1] 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 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."

27. The judge stated (judgment, [72]) that the effect of his order would be that the appeal was remitted to the Secretary of State to reconsider his decision on ground (f) in the light of the judgment. He stated that it was to be hoped that Mr Williams and the Council could 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. He also stated "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 building to one which is not an exact replica of the permitted development but that he cannot use the opportunity to seek a substantial variation in its terms".

Discussion

28. This section of my judgment addresses three questions. The first is whether the Deputy Judge's approach erred. The second is that, if the judge did err, whether his order can be justified on the ground that the Inspector had erred in law in dismissing the appeal under section 174 of the Act. This second question involves this court considering whether it can, in effect, re-hear the appeal from the Inspector and conclude that it must be allowed. The process is similar to that used by this court to save the order of a lower court in English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605. In that case, this court dismissed an appeal which was founded on what were found to be inadequate reasons by the first instance judge. It did so after examining the material evidence and submissions at the trial and concluding that, when all of those were considered, it was apparent why the judge had reached the decision he did, and that reason was a valid basis for the judgment and order. The third question is Mr Williams' cross-appeal.
29. I have concluded that, despite the obvious care taken by the judge, his approach erred in the following ways. First, he went behind the Inspector's findings on matters of fact and evaluation in an impermissible way. It was common ground before the Inspector that the 2006 planning permission had not been implemented and that the building as built was materially different from the previous building because of its overall design and height and in its internal configuration, and the Inspector so found: DL, [6]. The planning permission had been for "alterations, conversion and roof extension" to provide the stables, tack room and ancillary services, and the Inspector had found that "as a matter of fact and degree" "the development cannot be reasonably called a conversion of the original building" and was a new building: DL, [9]. The Inspector therefore concluded that the breach of planning control alleged in the enforcement notice, that is the erection of a new building, had occurred as a matter of fact: DL, [10].
30. Notwithstanding these unchallenged findings of fact by the Inspector, the Deputy Judge concluded that what Mr Williams was permitted to do in implementing the original planning permission was (judgment, [29]) "both the substantial demolition of the old barn building and the provision of what would be tantamount to a new building in its place". He thus departed from the approach of all the parties and the findings of fact made by the Inspector. He appeared to have lost sight of the fact that it was common ground that the 2006 planning permission had not been implemented and that Mr Williams had accepted that the consequence of the development he had carried out was that its terms could not be met. I accept the submissions of Mr Kolinksy and Miss Colquhoun that the Deputy Judge not only embarked on a fact-finding exercise which was not open to him in the context of an appeal on a point of law, but also made primary findings of fact which were not open to him on the evidence before him. As to the latter, I accept Miss Colquhoun's submission that the judge did not have sufficient evidence to conclude that what the planning permission allowed for was some kind of replica of the previous building.
31. Additionally, the judge's construction of the planning permission by reference (see judgment, [25], [27] and [28]) to the absence of express directions or restrictions in the planning permission rather than the fact that permission was given for "alterations" and "conversion" is not conducive to certainty. He stated that, because no condition limited or directed the building method to be used, the sequence of work, or the parts of the existing structure or proportion to be retained in the light of the approved plans, the implementation of the planning permission involved both the substantial demolition of the old barn and the provision of what would be tantamount to a new building in its place. This approach is inconsistent with the principle, set out, for example, in Slough Estates Ltd v Slough BC [1971] AC 958 at 962 that in construing a planning permission on which members of the public are entitled to rely as a public document, the apparent meaning of the words used should not be altered. In the Slough Estates case that apparent meaning was not to be altered by the introduction of extrinsic evidence. By parity of reasoning the apparent meaning of the terms "alteration" and "conversion" was not to be altered by reference to what was not in the planning permission. To do that would detract from the certainty that is needed in such documents because they are relied on by third parties.
32. The judge's approach to the construction of the enforcement notice was also incorrect. The alleged breach of planning control was the "erection of the new building". That was a clear and unambiguous allegation. The sixth of the issues identified by the judge was whether the enforcement notice was defective. In his consideration of this, he recast the alleged breach of planning control. He stated that it was: "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": judgment, [53], (emphasis in the original).
33. He justified this significant addition, which is far more than a gloss, on the ground that there was no reference in the enforcement notice to the unauthorised changes which had been made to the design and external appearance of the approved building. He did this despite being conscious of the fact that this matter was not referred to in argument and notwithstanding the fact that, in so doing, he marginalised the clear findings of the Inspector. Those findings were that a new building had been constructed, and that the new building was something different from the conversion which had been permitted.
34. The judge's approach to construction relied not only on the words of the enforcement notice themselves, but (see judgment, [55]) on "necessary implication" and the "factual matrix" of the notice. That is contrary to the clear and well-established approach based on the need for certainty in the drafting and interpretation of enforcement notices because the notice is a prelude to a possible penal procedure and comparable to the grant of an injunction: see Upjohn LJ in Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196 at 224. The person who is served with an enforcement notice is entitled to look only to the precise words of the notice to interpret what is required. In the Miller-Mead case, Upjohn LJ stated that an enforcement notice "is a most important document and the subject, who is being told that he is doing something contrary to planning permission and that he must remedy it, is entitled to say that he must find out from within the four corners of the document exactly what he is required to do or abstain from doing". Although the Deputy Judge's approach to interpretation was deployed to assist Mr Williams, the added words introduce uncertainty. An approach which uses "necessary implication" and "the factual matrix" is also inconsistent with the need for certainty in planning documents and the approach of Upjohn LJ which was approved by Lord Reid in the Slough Estates case.
35. I also accept Mr Kolinsky and Miss Colquhoun's submissions that, as a result of his reliance on his flawed rewording of the 2006 planning permission and the enforcement notice, the Deputy Judge adopted an incorrect approach to the steps necessary to remedy the breach and to the alternatives available to the Inspector. It was in relation to this point that, while not defending the Deputy Judge's reasoning, Mrs Townsend maintained that the judge's conclusion that the steps in the enforcement notice went beyond what was necessary to remedy the breach of planning control, in particular in the light of the three outline schemes those representing Mr Williams had referred to before the Inspector, was justified. I deal with this submission when considering whether the Inspector erred in law in his approach on these matters. But the judge's reasons in section 7 of his judgment where he considered whether Mr Williams was entitled to remedy the breach by altering the new building rather than being required to demolish it, were dependent on his rewording of the 2006 planning permission and his re-construction of the alleged breach of planning control. Accordingly, his consideration of whether the steps in the enforcement notice went beyond what was necessary also erred in law. I add that the Deputy Judge stated that one of the Inspector's errors of law was in failing to give effect to section 174(1)(a). As I have stated (at [26 note 1]), this provision does not exist. If the reference was meant to be to section 174(2)(a), it is also possible that the Deputy Judge was proceeding on the basis that there was an appeal on ground (a) of section 174(2), which (see [12] above ) there was not.
36. I turn to Mrs Townsend's submission that the judge's order could be justified irrespective of his reasoning because the Inspector's decision was erroneous in law. She submitted that the Inspector fell into legal error in not regarding the works of demolition as part of the breach of planning control, or alternatively in failing adequately to give reasons for finding that they were not part of it. She accepted that the Inspector made a finding of fact that the original barn was "substantially demolished". She, however, submitted that this was not a finding by the Inspector that the building was entirely demolished or that the demolition was either in fact or in law a separate operation to the construction of the new building. She maintained that, because the works resulting in the substantial demolition were so integral to the construction of the new building, the breach of planning control included both elements. She also contended that the description of the works in the Inspector's decision letter was consistent with this.
37. Mrs Townsend submitted that, by ordering the demolition of the new building, the Inspector ignored the implications of regarding the breach as including the demolition. The major one was that there was a building on the land before the breach of development control occurred. Accordingly, ordering the demolition of the building went beyond what was necessary to remedy the breach of planning control and, in so ordering, the Inspector erred in law. She contended that he erred in not recognising that the enforcement notice was defective in not referring to the demolition as a breach of planning control. She argued that the judge's conclusion (judgment, [55]) that the enforcement notice should be read by adding to and extending the definition of the breach (which I have set out at [32]) was consistent with this approach.
38. Mrs Townsend also contended that the enforcement notice was excessive in requiring demolition. She argued that the Inspector's decision erred in not considering whether steps less onerous than demolition would have been sufficient to overcome the harm caused by the breach of planning control because the effect of demolition would mean that a later application for planning permission would be judged in the light of Green Belt policies and without reference to the impact of the barn that had formerly been on the site or the building permitted by the 2006 planning permission. Her alternative submission was that if, contrary to her primary case, the Inspector had concluded that the works of demolition were not part of the breach of planning control enforced against, he did not provide adequate reasons in his decision letter for this conclusion.
39. I reject these submissions. It was not an error for the enforcement notice to allege that the relevant breach of planning control was the erection of a new building because that was the effect of what had happened. As Nourse LJ stated in West Bowers Farm Products v Essex County Council (1985) 50 P & C R 368 at 374, "the planning legislation is not impressed by the indivisibility of single processes. It cares only for their effects. A single process may, for planning purposes, amount to two activities. Whether it does so or not is a question of fact and degree." Mrs Townsend's submission is in effect that, because the two activities were carried out in an integrated way, they are not capable of being analysed as two separate activities. She submitted that the observation of Nourse LJ was made in a different context, where a single process involved two activities, both of which required planning permission, and did not concern an enforcement notice or breach of planning control. She maintained that, even if the demolition of the former building on its own would not have required planning permission, once it was part of a single process involving demolition and construction it did.
40. The submission that it is not possible to analyse the two activities as separate activities is inconsistent with the decision of the Court of Appeal in Iddenden v Secretary for the Environment [1972] 1 WLR 1433. In particular, it is inconsistent with the statement of Lord Denning MR (at 1439) that:

"no doubt the pulling down of the old and the erection of the new is all one combined operation by the workman, but in planning law they are different operations. Mr Iddenden only required planning permission for his new buildings and their user. The only breach of planning control was the unauthorised erection of the new buildings, the concrete base, and the user of the factory. The enforcement required him to remedy that breach. It told him the steps he had to take. It was perfectly good."

The technique which Mrs Townsend deployed in an attempt to distinguish the Iddenden case itself relied on the approach of the judge to the construction of the planning permission and the enforcement notice. But for the reasons I have given, that was an impermissible approach. The Inspector's clear finding was that the operational development being enforced against was the erection of a new building.

41. It is in any event clear that no permission was needed for the demolition of the original barn. Accordingly, it was not possible to regard the demolition operations as a breach of planning control. But, even if the breach of planning control included the demolition, the Council did not have to require the construction of a replacement building: see section 173(6) of the Act, summarised at [11] above. To do so would, moreover, have imposed a greater burden on Mr Williams as compared with what the Council did require in its enforcement notice. Additionally, requiring the reconstruction of the barn that was formerly on the site was, in the circumstances of the case, as Mrs Townsend substantially accepted, not a practical proposition.
42. I also reject Mrs Townsend's submission that the Inspector's use of the phrase "substantially demolished" meant he did not find it was entirely demolished. Read fairly, the Inspector's decision was that the barn had been demolished. The evidence before the Inspector was that, in proportional terms, 99% of the building was new. Determining whether changes to a building constitute a "conversion" or a "new building" is a classic fact-sensitive matter involving evaluation. The Inspector's finding that the barn had been demolished and could not be restored was unchallengeable in a section 289 appeal.
43. As for the submission that the Inspector's reasons for concluding that the demolition works were not part of the breach of planning control were inadequate, this is also unfounded. The case law on reasons shows a clear rejection of the over-analysis of reports and forensic points, in particular those which are disguised attempts to revisit the planning merits and the Inspector's evaluation of questions of fact and degree. The jurisprudence shows a clear acceptance of an approach emphasising substance and the nature of the issue. The guidance from the cases is that there should be particular caution where the reasons challenge relates to what is essentially an exercise of discretion or planning judgment. The starting point is the well-known statement of Lord Brown of Eaton-under-Heywood in Bucks District Council v Porter [2004] 1 WLR 1953, at [36] that "decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced". This has been frequently applied in this Court. Two recent examples are Tegni Cymru v The Welsh Ministers [2010] EWCA Civ 1635 and Welsh Ministers v RWE NPower [2012] EWCA Civ 311 where reasons challenges were rejected. In the Tegni Cymru case Pitchford LJ stated (at [27]) that "none of the parties could really be in any doubt what was the basis for his planning judgment". That is the position in this case. Against a background where it is clear that permission was not required for the demolition of the old barn, the breach of planning control alleged in the enforcement notice itself, and the finding that the extent of the works meant that the development could not reasonably be called a conversion clearly show the basis of his reason.
44. As to the modifications canvassed by Mr Williams representatives and discussed, the Inspector stated (DL, [34]) that they "would materially alter the design of the building". He also stated (DL, [42]) that he did not accept that modifications to the building's fabric would be acceptable. They would also not restore what had previously been there. The fact was that there was no proposal to reconstruct the barn that had previously been there. Although Mrs Townsend suggested during the course of the hearing that that was one of the options open to the Inspector, as I have stated, she accepted that it was unrealistic and even possibly "silly".
45. It was in relation to this point that Mr Kolinsky and Miss Colquhoun relied on the absence of a ground (a) appeal against the enforcement notice. They pointed to the fact that, in the light of the statements of Carnwath LJ in the Tapecrown case, the Inspector was not under a duty to search for solutions and the party in breach of the planning permission was required to put forward a proposed alternative to demolition for consideration. It would appear that, once the Council had made it clear that it was not interested in the alternatives floated by Mr Williams' planning consultant, a decision was taken by him or those representing him not to put them properly before the Inspector. It was decided to press for the quashing of the enforcement notice on the ground that requiring the demolition of the building exceeded what was necessary to remedy the breach of planning control. Mrs Townsend maintained that this was perfectly proper because, had the enforcement notice been quashed, it would have been open to the Council to serve another enforcement notice.
46. The alternative schemes before the Inspector were relied on only in support of the contention that additional time should be allowed under the ground (g) appeal. In the absence of an appeal on ground (a) by Mr Williams, the strategy of not putting forward a worked-out alternative to demolition was a high risk strategy, in a sense a form of Russian roulette. It did not pay off, and the argument that the Inspector erred in law in not adopting one of the alternatives canvassed in correspondence but not developed properly and put before him is unsustainable.
47. I turn to the cross-appeal. It was against the Deputy Judge's findings upholding the Inspector's conclusion on the section 174(2)(b) ground, that the breaches of development control specified had not occurred. While not abandoning this, Mrs Townsend did not place any weight on it. In view of the Inspector's clear findings of fact and particularly in view of the acceptance by Mr Williams that the planning permission was not implemented, the building built was materially different from the previous building and could not reasonably be called a conversion, there is nothing in this point.
48. For these reasons, I would allow the appeals, dismiss the cross-appeal, set aside the Deputy Judge's order and restore the Inspector's decision.

Lord Justice Patten:

49. I agree.

Lady Justice Arden:

50. I also agree.

Note 1    The 1990 Act does not contain a section 174(1)(a), and it seems likely that this is meant to be a reference to section 174(2)(a).    [Back]