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Enforcement notice requiring demolition was inappropriate, rules High Court

An enforcement notice by Chiltern District Council requiring a landowner to demolish a building to remedy a breach of planning permission for conversion of the building was excessive, a High Court judge has said.11 Dec 2012

The judge said in his ruling that the enforcement notice should have required alteration of the building rather than demolition. The planning inspector had "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," he said.

The Council had refused four applications by landowner Williams to alter and convert a barn between 2001 and 2006. The last of the applications was granted permission on appeal for the conversion, alteration, roof extension and change of use of the old barn. After the grant of permission, Williams had demolished most of the building and begun to fit out the new roof extension.

The Council issued an enforcement notice against Williams in 2009 requiring him to demolish the building on grounds that the works were not in accordance with the approved plans. The Council said that the building was being "completely rebuilt" in breach of the planning permission, which was for alteration, conversion and roof extension to an existing building.

Williams applied for retrospective planning permission for the new building and the Council withdrew the enforcement notice as a result. It then refused the new application on grounds that the site was on green belt land. 

The judge said that "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" since an application for a new building would have to be tested against green belt policies. "No similar proposed development on an empty site in that location" would have obtained planning permission in the absence of "very special circumstances" as it would have been an inappropriate development in the green belt, the judge said.

The judge said that "the breach that created a new building had come about as a result of Mr Williams’ unsuccessful attempts to implement the permission for the development of the old barn". He said that Williams had made a "regrettable" mistake, but that "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".

Under section 173(4)(a) of the Town and Country Planning Act, Williams is entitled to apply for, and have considered, 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, the judge said. He ordered that the appeal be remitted to the Communities Secretary for reconsideration.