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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Ceredigion County Council v National Assembly For Wales & Anor [2001] EWHC Admin 694 (21st September, 2001) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/694.html Cite as: [2001] EWHC Admin 694

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Ceredigion County Council v. National Assembly for Wales and Mr E.D. Harrison [2001] EWHC Admin 694 (21st September, 2001)

Case No: CO/1083/2001
Neutral Citation Number: [2001] EWHC Admin 694
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Friday 21 September 2001

1. These proceedings arise out of enforcement notices issued by Ceredigion County Council against Mr E.D. Harrison in respect of alleged breaches of planning controls at a site known as Porthrhyd, Pontsian, Llandysul, Ceredigion. Mr Harrison appealed against the enforcement notices to the National Assembly of Wales, which appointed an inspector to determine the appeals. In a decision dated 20 February 2001 the inspector directed the variation of the enforcement notices so as to permit compliance within two years rather than the period of two months allowed in the original notices. Subject to that, he dismissed the appeals. The council now appeals under section 289 of the Town and Country Planning Act 1990 against that decision. The reason for the council's appeal is not just a concern about the extension of time but a concern about the underlying reasoning. In essence, the inspector found that the site was the subject of an extant and valid planning permission, granted in 1973, and that Mr Harrison ought to be given time to complete its implementation; whereas the council's case is that the 1973 planning permission had lapsed and that the inspector erred in law in reaching a contrary conclusion.
The background

2. Planning permission for the site was granted on 8 February 1973 on an application submitted by the former owner, a Mr Benniman. The description of the development for which permission was granted was "alterations and extension to dwellinghouse". The nature of the development is described more fully in paragraph 7 of the inspector's report:
"The Council has only two plans in their records of this approval. The first shows the survey plans and the second the 'proposed improvement and extension'. By comparing the two plans it is clear that only part of the stone walls of the north and south walls were to be retained in the finished dwelling .... In all other respects the dwelling shown on the proposals plan appears to be of new construction."

3. The grant of permission was subject to the standard condition that the development be begun within 5 years from the grant of permission.

4. The facts relevant to the question whether the development was begun within the 5-year period are set out as follows in paragraph 8 of the decision, where the inspector is to be taken impliedly to have accepted the appellant's evidence to which he refers:
"The appellant's evidence concerning the sequence of events started in June 1973 when his mother bought the cottage from Mr Benniman for the appellant, his wife and child to live in. They moved in and were living in the cottage. The next operation was the formation of a new access and hardstanding towards the bottom of the site. This was so that the appellant's horse drawn caravan could be located on the site. During the first winter it was used for general household storage. The 'demolition' work on the cottage was carried out in the Autumn of 1974 by the appellant and his family. The gable walls were taken down to where they were reasonably solid to build on. This was about 5ft 3ins above ground level and not 3ft as maintained by the Council. After the passage of time it was difficult to be precise because of subsequent frost damage and erosion but at no time has any building up of the walls taken place. Since the cottage was no longer habitable the appellant, his wife and child lived in the caravan. Further work on implementing the planning permission ceased as the appellant had insufficient funds to continue."

5. The key point is that the only work done, apart from the formation of a new access and hardstanding, was what the inspector described as work of "demolition", namely taking down the gable walls to a few feet above ground. No work of building up of the walls took place.

6. It is not necessary to examine in any detail the subsequent history of the site. For some years Mr Harrison moved away from it. He moved back in 1986 and has subsequently lived on the site in a variety of temporary structures. In 1988 an enforcement notice was issued in relation to a bus in which he was living on the site. An appeal against that notice was unsuccessful. A second enforcement notice was issued in 1989, this time in relation to a prefabricated wooden hut on the site, and an appeal was again unsuccessful.

7. The present proceedings relate to two enforcement notices issued in June 2000, both also relating to prefabricated wooden structures on the site. As regards the first structure, the ground of appeal before the inspector was that it was a temporary building to provide basic facilities that the dwelling itself was unable to provide while it was being altered and extended and which was also being used as a "site hut", and that it therefore benefited from planning permission pursuant to article 3 of the GPDO 1995. The second structure was said to be used for storing bicycles, toys, tools and other belongings, and also to be where Mr Harrison pursued his craft of wood carving, and the ground of appeal was that it was permitted development under the GPDO 1995 as a building required for a purpose incidental to the original dwellinghouse. The inspector rejected each of those grounds of appeal on the facts.

8. Before examining those grounds of appeal, however, the inspector had reached the conclusion that the 1973 planning permission was still valid. Although that issue was not formally before him for determination, he had considered it necessary, in the exceptional circumstances of the case, to come to a conclusion on it; and having found against Mr Harrison on the specific grounds of appeal, he went on in paragraph 33 of the decision to grant the extension of time for compliance. He stated:
"However, given the very unusual circumstances of this case I consider that a significant extension of the period for compliance with both notices would be appropriate in the interests of natural justice. This would give the appellant time to raise the necessary finance to complete the work. It would allow time for the submission and consideration of any alternative plans which might now be required because of any changes in the Building Regulations since the 1973 permission. It would also enable the appellant and his family to continue to live and keep their possessions on the site whilst matters are finally resolved. The appellant anticipated that it would take about 18 months to complete the building works. Therefore I shall extend the compliance period to two years from the date of these decisions."

9. In order to understand the inspector's conclusion on the validity of the 1973 permission, it is necessary first to set out the relevant statutory provisions.
The statutory provisions

10. The statute in force at the material time was the Town and Country Planning Act 1971. Section 43 of that Act reads:
"(1) For the purposes of sections 41 and 42 of this Act, development shall be taken to be begun on the earliest date on which any specified operation comprised in the development begins to be carried out.
(2) In subsection (1) of this section 'specified operation' means any of the following, that is to say -
(a) any work of construction in the course of the erection of a building;
(b) the digging of a trench which is to contain the foundations, or part of the foundations, of a building;
(c) the laying of any underground main or pipe to the foundations, or part of the foundations, of a building or to any such trench as is mentioned in the last preceding paragraph;
(d) any operation in the course of laying out or constructing a road or part of a road;
(e) any change in the use of any land, where that change constitutes material development."

11. The key phrase in that section is "any work of construction in the course of the erection of a building" in subsection (2)(a). By section 290(1), "erection" is defined as including "extension, alteration and re-erection".

12. Section 43 was re-enacted in materially the same form in section 56 of the Town and Country Planning Act 1990. Section 56 of the 1990 Act was then amended, however, by the Planning and Compensation Act 1971 so as to include an additional operation, namely "any work of demolition of a building", among the specified operations. The relevant provisions of section 56, as amended, read:
"(2) For the purposes of the provisions of this Part mentioned in subsection (3) development shall be taken to be begun on the earliest date on which any material operation comprised in the development begins to be carried out.
(3) The provisions referred to in subsection (2) are sections ... 91 [which imposes the standard condition as to the time within which development must be begun] ...
(4) In subsection (2) 'material operation' means -
(a) any work of construction in the course of the erection of a building;
(aa) any work of demolition of a building;
...."
The inspector's reasoning

13. In the central section of his decision the inspector referred first, in paragraph 18, to the argument advanced by the council that the work that had been done on the building during the five-year period consisted only of demolition works and that works of demolition were not a specified operation within section 43 of the 1973 Act; any work of demolition became a material operation only in 1991, by virtue of the amendment of the 1990 Act so as to insert what is now section 56(4)(aa) of the 1990 Act. He went on:
"19. Whilst I have some sympathy with the inspector dealing with the second appeal when he says that 'what was actually granted permission was tantamount, in my estimation, to a completely new dwelling', this is not what was granted planning permission in 1973. The wording was 'alterations and extension to dwellinghouse'. In addition those were the words of the Local Planning Authority not the applicant's words. The choice of words to describe the development must have had regard to what was shown on the plans which were part of that approval.

20. Had the approval been for the erection of a new dwelling then I would attach more weight to the Council's argument. Planning permission would not then have been required for the demolition of a building in 1973. In those circumstances the demolition of an existing building on the site would normally have been considered as part of site preparations. It could have been a separate operation carried out at a different time and by a different contractor.

21. In this case the appellant's evidence is clear that the 'demolition' work undertaken by himself and his family was with the intent of proceeding with the alterations and extensions as approved. The reasons why the work did not proceed do not alter the fact that the 'demolition' work was selective. The parts of the two gable walls to be retained in the altered dwelling were retained for that purpose. I do not see how the approved plans could be implemented without taking down the existing dwelling except for the parts of the two gable walls. I consider that these works were part of the alterations as approved. The 'erection' in relation to buildings 'includes extension, alteration and re-erection' of a building as defined by the meaning of 'erection' in Section 290(1) and as such comes within the first of the specified operations under Section 43 of the 1971 Act namely 'any work of construction in the course of the erection of a building'. In my view the appellant did make a start on the implementation of the 1973 planning permission before the expiration of 5 years from the date of that permission."

14. The inspector then found in paragraph 22 that the former use of the site for a dwelling had not been abandoned. In paragraph 23 he stated that from his site inspection there were still significant parts of the gable walls standing on site and that, provided significant parts of those two walls were retained and incorporated into any new building, then it was still possible to implement the 1973 permission. Therefore he concluded that at the time of the inquiry the 1973 permission was still valid and capable of implementation.
The main ground of challenge

15. The main ground advanced by Mr Brown in his oral submissions on behalf of the council was that the inspector failed to deal, or erred in dealing with, the full terms of section 43(2)(a) of the 1971 Act. To count as a specified operation within that provision, any work must be (i) work of construction and (ii) in the course of the erection of a building. There are two limbs. The inspector dealt with the second limb but not the first. He explained why in his view the "demolition" work was part of the work of alteration and therefore done "in the course of the erection of a building". But he did not explain how the "demolition" work could be "work of construction". Yet it had been part of the council's case that demolition and construction were two different things. Thus there was a failure on the part of the inspector to deal with a principal controversial issue. Alternatively, if he did impliedly find that the work done was work of construction, he erred in law in so finding.

16. In my judgment the council's case on that first ground is well founded. It is plain that, in order to fall within section 43(2)(a), work must be "work of construction"; it is not enough that it is done "in the course of the erection of a building". The inspector, however, gives no reason for concluding that the work done in this case - work which he himself describes as work of "demolition" - was work of construction. The reasoning in paragraph 21 of the report is directed towards showing that the work formed part of the alteration of the building and was therefore done in the course of the erection of a building. It appears to overlook altogether the question whether it was also work of construction, and it certainly does not give any reasoning in support of the conclusion that it was work of construction.

17. Mr Marshall, for the National Assembly, whose submissions were adopted by Mr Harrison appearing in person, submitted that it is inconceivable that the inspector can have ignored such an important argument; and, since the inspector sets out the wording of the provision in paragraph 21, he must have addressed the point. In my view, however, the setting out of the provision as a whole is not enough to show that the inspector had this part of it sufficiently in mind, and even if he did have it in mind there is nothing to show how he reached the conclusion that it was work of construction. Thus there was an important deficiency in the inspector's reasoning.

18. In any event, for the reasons given below, I take the view that if the inspector did find that the work done in this case was "work of construction", he erred in law in so finding.

19. "Construction" is not defined in section 290(1) or elsewhere in the 1971 Act. I see no reason for giving it anything other than its ordinary English meaning. There is nothing to show that it is intended to bear any special or extended meaning. It is not to be equated with "erection" as defined in section 290(1): the very fact that section 43(2)(a) refers both to "work of construction" and to "in the course of erection" is a strong indication that the concepts are not the same. The words "any work of construction" in (a) may also be contrasted with the language used in the rest of section 43(2), for example the expression "any operation in the course of laying out or constructing a road" in (d). The use of that expression in (d) highlights the fact that the draftsman has chosen a the specific concept of "construction" in (a).

20. The work done on the site in 1974 consisted only in taking down walls, albeit that the gable walls were not taken down completely. In my judgment such work cannot be termed work of "construction" on the ordinary meaning of that word. The inspector correctly described it as "demolition". "Demolition" is the antithesis of "construction". I have not found anything to the contrary in the various definitions of "construction" in the Shorter Oxford English Dictionary to which Mr Marshall referred me. I reject his specific contention that alteration (demolition) of a dwelling with a view to incorporating the walls left standing in the rebuilding of it is within "the art of science or constructing" and therefore counts as "construction".

21. Mr Marshall submitted that the words "any work of construction" in section 43(2)(a) serve only a very limited purpose, namely to show that it is not necessary for the whole building to be erected; it is sufficient that some works of erection have been carried out. I find that an impossible contention to accept. If "any work of construction" had such a limited purpose, the words would not be needed at all, since the words "in the course of the erection of a building" are sufficient in themselves to show that it is not necessary for the work to have been completed. Moreover, it is plain from section 43(1) that the section is looking at the date when a specified operation begins to be carried out, rather than at completion; so that again there is simply no need to introduce additional words with the limited purpose for which Mr Marshall contends.

22. Both counsel referred to the amendment made in 1991 to the corresponding provision of the 1990 Act, so as to include "any work of demolition of a building" as a material operation in section 56(4)(aa). For the council Mr Brown pointed out that "building" is defined to include part of a building (section 336 of the 1990 Act) and submitted that the additional provision would not have been necessary if either total demolition or partial demolition were already covered by "work of construction". Mr Marshall submitted that the 1991 amendment did not assist the council's case. I think that he was right in that submission. It is probably illegitimate to have recourse to the 1991 amendment to the 1990 Act as an aid to the construction of the 1971 Act, save for the purpose of resolving an ambiguity (which I do not consider to exist here): see the observations of Nolan LJ in Cambridgeshire City Council v. Secretary of State for the Environment [1992] JPL 644 at 657. But even if I were to look at the amendment, it seems to me that it would provide the Council with only limited assistance. It certainly supports the existence of a distinction between construction and demolition; and the legislator appears to have considered that the previous provisions, including that relating to "work of construction in the course of the erection of a building", did not encompass all work of demolition of a building. But the amendment is consistent with the possibility that the previous provisions encompassed some , though not all, work of demolition, and it does not therefore establish that the work of demolition found to have taken place in this case was excluded under the previous provisions.

23. In relation to the 1991 amendment, Mr Marshall also referred me to paragraph 3 of Welsh Office Circular No. 10/95, "Planning Controls over Demolition". That paragraph states first that the equivalent amendments to section 55 of the 1990 Act, to the effect that "building operations" include the demolition of buildings, brought the total demolition of certain buildings within the meaning of "building operations" and thus within the meaning of "development". It goes on:
"The amendments do not affect the position of partial demolition of a building, which is generally regarded as development under section 55, by virtue of being a structural alteration of a building and thus a building operation"
That may well be true of the position under section 55, but it does not apply to section 56 (the section corresponding to section 43 of the 1971 Act), since the latter does not rest on the concept of "building operation" but contains its own specific provisions as to the "material operations" by virtue of which development is to be taken to be begun. Even though partial demolition of a building can be work of alteration, that is not enough to bring it within the unamended section 56(4)(a) or its predecessor, section 43(2)(a) of the 1971 Act, since it satisfies only the second limb of the statutory provision, not the first.

24. I should also refer to two further authorities on which Mr Marshall relied. In Shimizu Ltd. v. Westminster Council [1997] 1 WLR 168 it was held by the House of Lords that "alteration" of a building and "demolition" of a building (i.e. destroying it completely and breaking it up) are mutually exclusive concepts, but that the removal or demolition of part of a building is capable of constituting an alteration of the building as a whole; and that whether particular works constitute "alteration" of a building or "demolition" of the building is a question of fact and degree for the relevant tribunal. In this case the inspector was in my view entitled to find that the work of "demolition" was part of the alteration of the building (and therefore, by virtue of the definition in section 290(1) of the 1971 Act, was done in the course of "erection" of the building). No doubt he used quotation marks around "demolition" in order to distinguish it from total demolition of a kind that would be caught only by the additional provision introduced by the 1991 amendment. In all of this he approached the matter correctly. But again that does not go far enough. One still comes back to the failure to address the point that, to come within section 43(2)(a), the work must not only be "in the course of the erection of a building" but must also be "work of construction".

25. In London County Council v. Marks & Spencer Ltd. [1953] AC 535 it was held, also by the House of Lords, that the phrase "works for the erection ... of a building" meant the totality of the physical works on the site necessary to carry out the authorised building project, beginning with the work of demolition and ending with the completion of the building. The argument that the phrase referred only to building operations of a constructional nature and not to operations consisting in demolitions or site clearance was rejected. That decision provides further support for the inspector's conclusion that the work of "demolition" in this case was part of the alteration and was done in the course of erection of a building. It does not assist Mr Marshall, however, in relation to the first limb of section 43(2)(a). The statutory provision in issue was materially different, the House of Lords did not hold that "demolition" could be "construction", nor is there anything in the reasoning to support such a view.

26. For the above reasons the inspector's decision was in my judgment deficient in its reasons and wrong in law in so far as it held that the work carried out on the site within the 5 year period referred to in the 1973 planning permission was a specified operation within section 43(2)(a) of the 1971 Act.
Other grounds

27. In the circumstances I can deal briefly with the other grounds advanced by Mr Brown on behalf of the council. The second ground was that the inspector erred in treating as a relevant consideration Mr Harrison's intention in carrying out the work in question. The test under section 43 is an objective one and the subjective intention of the developer is irrelevant: East Dunbartonshire Council v. Secretary of State for Scotland [1999] 1 PLR 53 and Riordan Communications Ltd. v. South Buckingham District Council [2000] 1 PLR 45, both decided under the equivalent section, section 56, of the 1990 Act.

28. It is true that in the first sentence of paragraph 21 of the decision the inspector refers to the subjective intention of the developer. He states that on the evidence it is clear that the "demolition" work undertaken by Mr Harrison and his family "was with the intent of proceeding with the alterations and extensions as approved". Looking at the paragraph as a whole, however, I take the view that the inspector's conclusion was based on an appraisal of objective factors rather than on any inappropriate subjective test. In any event, given his factual findings, the work of demolition could properly be regarded as work of alteration on an objective analysis. I therefore reject the council's case on the second ground.

29. The third ground was again a challenge to the inspector's reasoning in paragraphs 20 and 21 of the decision. It involved a submission that the distinction drawn between total demolition and selective or partial demolition was a false one. Suffice it to say that I have not found that submission persuasive. In my judgment the decision on this aspect of the case was adequately reasoned and reasonably open to the inspector on the facts.
Conclusion

30. Accordingly I find in the council's favour on the first, but not the second or third, of the grounds advanced.

31. Mr Marshall made a discrete submission that even if I found in the council's favour on any of its grounds of challenge, I should not quash the inspector's decision to extend the period for compliance. Section 174(2)(g) of the 1990 Act allows the period to be extended where it falls short of what should reasonably be allowed. That matter is within the discretion of the inspector. The court should not interfere with the exercise of that discretion even if it is found that the inspector erred in holding that there was a valid and extant planning permission.

32. That submission is untenable. It is plain beyond argument that the inspector's exercise of discretion to extend the period for compliance was premised on his finding that there was a valid and extant planning permission. If the premise was erroneous, as I have held it to be, then the exercise of discretion is necessarily vitiated. In those circumstances my finding in favour of the council's first ground leads inevitably to the quashing of the inspector's decision.

33. A copy of this judgment has been seen by the parties in draft. I have received written submissions from them, without requiring attendance at the time when the judgment is handed down. In the light of those submissions I will order that:
i) the inspector's decision be quashed;
ii) Ceredigion County Council's costs are to be paid by the National Assembly for Wales, in the agreed sum of £7,294.80.