A recent High Court ruling has shown that demolition may not implement a planning permission, writes Estelle Dehon.
The High Court has handed down a decision which should act as a warning to those seeking to implement a planning permission merely by carrying out demolition works. The court held that, if the subsequent development is sufficiently materially different from that permitted, the demolition may not implement the planning permission. This is the case even if the subsequent development is carried out some time after the elapse of the requisite time period in which work was required to begin.
The case of Silver v SSGLC  EWHC 2729 (Admin) concerned a planning permission permitting demolition of an existing single storey rear extension and erection of a two-storey rear extension at basement and ground floor level. The claimant carried out the demolition works and some of the basement excavation works just before the permission expired. Thereafter, the works undertaken differed in a number of ways from the permitted scheme, including in the roof form, the ground floor footprint, the window arrangement, and their proximity to the boundary of the property. A planning inspector decided that the works were sufficiently materially different that the planning permission had not been implemented.
The claimant argued that it was impermissible for the inspector to look so far forward in time beyond the date of implementation, and to assess whether the planning permission had been implemented by reference to the entire development rather than a set of material operations which could comprise the development. Mr Justice Supperstone rejected those contentions. He held that the inspector’s conclusion that there was a sufficiently substantial difference between the as built scheme and the permitted scheme could not be characterised as irrational, and that the inspector’s determination that the planning permission had not been implemented was a permissible exercise of his planning judgment. He held further that the Inspector correctly considered and relied on the judgment of Ouseley J in Commercial Land Limited v SSCLG  EWHC 1264 (Admin).
Although it remains the case that a planning permission can be implemented by demolition (or any other “ambivalent” works), despite the developer subsequently straying from the boundaries of the permission, the judgment in Silver makes it clear that straying too far may mean the planning permission had not in fact been implemented.
The decision in Silver is also interesting as it deals with whether an enforcement notice is a nullity where the council has made a mistake in its assessment underlying the reasons expressed on the face of the notice. The error in question was caused by the ambiguous labelling of plans, which the council thought were scaled at 1:50, but which were in fact 1:100. Once the mistake was brought to light, the council maintained the reasons for issuing the notice (including reasons relating to the size of the structure), but on an amended basis. Mr Justice Supperstone accepted that it was not permissible to look beyond the notice, and that, given the reasons on the face of the notice remained the same and were held to be justified despite the initial mistake, the notice was not a nullity.