Council should have acquired planning permission before demolishing chapel, High Court finds

A High Court judge has declared that Redcar and Cleveland Borough Council should have obtained planning permission before deciding to demolish a disused property on the verge of collapse in a conservation area.

In Samuel Smith Old Brewery (Tadcaster), R (On the Application Of) v Redcar and Cleveland Borough Council [2023] EWHC 878 (Admin), Mr Justice Lane found that the local authority's use of section 78 notice under the Building Act 1984 to start demolition did not abrogate the need to obtain planning permission.

The disagreement between the council and the claimant can be traced back to November 2021, when the council made a planning application for the site which included a chapel and a school house in Saltburn-by-the-Sea that proposed the building's demolition.

However, the council later withdrew the application after an objection from the claimant, who owns a neighbouring property.

Despite the decision to withdraw the application, the council commissioned a series of surveys for the building, which concluded that it was "unsafe to enter", repairs would not be viable and that the building should be immediately demolished.

By September 2022, councillor officers had issued a briefing note that encouraged the council to issue a section 78 notice but noted that there would be a delay for planning permission.

Section 78 gives a local authority power to take steps to deal with a building or structure which is in a dangerous state, such that immediate action is needed to remove the danger.

The briefing note added that, without planning permission, demolishing the building would be a criminal offence, but there would be a defence to the prosecution.

The council is known to have instructed counsel to advise on whether a judicial review of the defendant's decision to proceed to demolish the property under section 78 would be likely to succeed; and whether an application for a private prosecution under the Town and Country Planning Act 1990 would be likely to succeed.

The advice was that demolition did require planning permission and would amount to a criminal offence under the 1990 Act if carried out without such permission.

But counsel considered that if demolition was carried out under section 78 of the 1984 Act, this would be likely to constitute a defence under section 196D (Offence of failing to obtain planning permission for demolition of unlisted etc buildings in conservation areas in England) of the 1990 Act.

A month later, a third survey was carried out, finding that the coming winter and potential for snow risked an impending collapse of the chapel's roof. The surveyor recommended a controlled demolition.

On 18 November, the council exercised a Delegated Power Record (DPR), stating that the demolition of the chapel was urgently needed in order "to mitigate the risk of building collapse during the winter months if a snow load is applied to the roof of the building".

It added that there was no other alternative option available "to practically mitigate the risk prior to the winter months".

Two weeks later, contractors commenced demolition works on the site, prompting the claimant to seek a legal challenge.

According to a council statement made earlier this month, demolition of the property is 90% complete.

The claimant advanced two grounds of argument at the High Court. The first contended that the council's course of action was ultra vires since it was contrary to section 57 (Planning permission required for development) and section 196D of the 1990 Act.

The second ground alleged that if contrary to ground 1, it was possible for the defendant to rely upon section 78 of the 1984 Act, notwithstanding the terms of sections 57 and 196D, the decision to demolish the property was in any event unlawful, as the defendant did not lawfully apply section 78.

The second ground failed, but the claim succeeded on ground one alone.

Summarising the first ground, the judge said: "Although framed as a vires challenge, the central question underlying ground 1 is whether a local authority which acts under section 78 of the 1984 Act in a way that constitutes development within the meaning of section 55 of the 1990 Act, requires planning permission for that development."

The council submitted that a local authority does not require such planning permission, arguing that to hold otherwise would negate the purpose of section 78 and lead to "absurd results".

Its argument added that if a council was required to acquire such planning permission, it would be contrary to the principle of statutory construction, articulated in section 11.1 of Benion on Statutory Interpretation (7th edition), that "Parliament is assumed to be a rational, reasonable and informed legislature pursuing a clear purpose in a coherent and principled manner".

Despite the council's arguments, the judge said: "I conclude that ground 1 succeeds, to the extent that section 78 does not abrogate the controls in the town and country planning legislation, including the requirement to obtain planning permission where this is required in respect of the steps to be taken by a local authority acting under section 78; in this case, the demolition of an unlisted building in a conservation area."

Counsel for the claimant and council agreed that the appropriate form of relief would be a declaration.

The judge added: "That must, with respect, be right. The fact that planning permission was required, but not obtained, by the defendant before commencing demolition of the property does not mean the defendant acted outside the powers of section 78. To hold otherwise would place a local authority, which invokes section 78 in order to carry out work on the property of a third party, in a significantly worse position than that of the owner of the property. There is justification in the legislation for reaching such a conclusion."

Adam Carey