IN THE HIGH COURT OF JUSTICE C0/572/97

QUEEN'S BENCH DIVISION

(CROWN OFFICE LIST)

Royal Courts of Justice

Strand

London WC2

Wednesday, 26th March 1997

B e f o r e:

MR MALCOLM SPENCE QC

(Sitting as a Deputy Judge of the Queen's Bench Division)

MAVIS ANN FOY

v

THE SECRETARY OF STATE FOR THE ENVIRONMENT

(Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Telephone No: 0171 831 3183 Fax: 0171 831 8838

Official Shorthand Writers to the Court)

MR M ASLANGUL (instructed by Messrs Adoko, London, SE17) appeared on behalf of the Applicant.

MISS N LIEVEN (instructed by The Treasury Solicitor, London, SW1) appeared on behalf of the Respondent.

J U D G M E N T

(As Approved)

Crown Copyright

THE DEPUTY JUDGE: An enforcement notice was served by the Dacorum Borough Council upon the appellant saying that the breach of planning control alleged in that notice is the "erection of a timber framed structure with plinths and foundations". The notice required the appellant to dismantle the timber framed structure, demolish the brick plinth and dig out the associated foundations.

She appealed to the Secretary of State for the Environment and after an enquiry the inspector dismissed the appeal. She now applies to this Court for leave to appeal under s.289 of the Town and Country Planning Act 1990.

Mr Aslangul appears on her behalf and tells me that there is one point. The Notice of Motion contains three points, accordingly points two and three are not proceeded with. Point 1 reads as follows:

"The inspector states in para 11 of his determination letter dated 22 January 1997 'I find no evidence that the Council issued either a written or a verbal determination that planning permission was not required for the works which were undertaken'. However in saying this he fails to give an explanation as to why his decision (that the Council was not estopped from issuing an enforcement notice concerning works they had considered to be acceptable as repairs) follows from the primary facts that he has found. Indeed, there was abundant evidence that a representation had been made by the Council that planning permission was not required for the repair work to be carried on the barn (as opposed to planning being required to convert a barn to a dwelling, which the appellant accepts is required). The Inspector has therefore overlooked and has failed to weigh the evidence that a representation was indeed made by the Council in regards to planning permission not being required in relation to the repair work carried out".

There are two further short subparagraphs which I need not read.

On the one hand, the works which are referred to in the decision letter as "the works which were undertaken" are as recited in the enforcement notice "the erection of a timber framed structure". On the other hand, the works which the inspector accepted as works that the planning officer confirmed verbally as not requiring planning permission were "works to the roof". This appears from paragraphs 7 and 8 of the decision letter, part of which I shall read. In paragraph 7 under the heading of "Estoppel" the last sentence is as follows "in response the Council state that they tried to take a reasonable view when the initial works were begun since it was clear that the barn required repair, but the works substantially undertaken went much further than what could reasonably be described as repairs".

Paragraph 8 reads:

"It has been accepted by the courts that a Council can be held to a representation made by them that planning permission is not required. However, it was confirmed in Western Fish ProductsvPenwith District Council 1978 JPL 623 that it is essential for there to be something in writing which can be interpreted as an application, and a written reply from an officer who has authority to give it. I have carefully examined the various letters I have been given in support of your claim but I find nothing from you or Mr Foy which can be interpreted as an application. There is no letter which described the work you proposed to undertake or which asked whether this required planning permission. It is clear that a meeting between the planning officer, Mr McFarland, and Mr Foy took place on the site on 29 March 1996 when work was being undertaken on the roof. The officer's letter of 24 April 1996 confirmed that the corrugated sheet roof covering had been removed and the slates were being removed. I am prepared to accept that the officer confirmed verbally at that meeting that repairs to the roof did not require planning permission. But a verbal statement of this kind cannot fetter the Council's discretion to take subsequent enforcement action if it appears to them that the works actually undertake go beyond repair. Whether their opinion on this matter is correct is a separate issue which I deal with later".

At paragraph 11 the inspector said "taking all these matters into account I find no evidence that the Council issued either a written or verbal determination that planning permission was not required for the works which were undertaken. I therefore find no basis for your claim of estoppel against the Council". Accordingly, it is apparent that the point made in the present application concerning works of repair do not go to meet the real issue, namely whether there was any estoppel in respect of the erection of the timber framed structure.

However, Mr Aslangul now takes a different point from the one or indeed any of the points which are pleaded in the Notice of Motion and there is no pleading before the Court recording the point which he does take, but it is to this effect: that is to say, that the inspector failed to realise that the work which was carried out was repair work and not, as he stated, and as set out in the enforcement notice, work for the "erection of a timber framed structure with brick plinth and foundations".

Mr Aslangul submits that although this finding of the inspector was one of fact and degree he decided it on the wrong side of the line and that he, the inspector, misdirected himself because the reality was that the barn was basically the same as before and fulfilled precisely the same function as before.

Before dealing with the matter, I need to draw attention to the wellknown case of SaintyvMinister of Housing and Local Government (1964) 15 P&CR 432, which was a decision of the Divisional Court in which Lord Parker, the Lord Chief Justice, held that work of demolition and replacement might in some circumstances amount to repairs if one carried it out in stages over time, but that this would be very rare. The judgment which he gave was endorsed by the Court of Appeal in HewlettvSecretary of State for the Environment (1985) JPL 404, where Sir John Donaldson, the Master of the Rolls, after observing that "it was very difficult to think how you could rebuild by stages in such a way as to produce what was in effect a new building and still be able to maintain that it was merely the old building in an improved form unless as was pointed out in argument there was very substantial separation between the stages a century or so later was suggested", said that" it was essentially a question of fact and degree and not a question of law...". Sainty has, of course, been followed in other cases as well.

However, Mr Aslangul put before me two authorities from the Chancery Division, one a decision of Woolf J in Customs and Exercise CommissionersvSutton Housing Trust 1983 STC 399 and the other a decision of Cullen J in New England PropertiesvPortsmouth New Shops, (1993) 23 Estates Gazette 130, which is a case involving the changing of the shape of the structure of a roof and in which the judge held, if I go to the last paragraph as follows:

"It seems to me that this is a borderline case. I think it is somewhere between Post OfficevAquarius and the Elite case. Looking at the matter broadly and taking into account in particular the nature and extent of the defects in design and construction of the roof and the fact that, as a result, it was an imminent danger of collapse; the fact that the comparative cost of merely patching up as opposed to replacing the whole roof was not a substantial difference; the fact that it was pointless rather than impossible to replace the roof by one of similar construction with a 22 degree pitch; and the fact that, at the end of date, one still has a roof fulfilling precisely the same function but doing so in a way which will not involve the occupiers with further disruption by recurring defects, I consider that the new roof is not such a different roof that it must be regarded as a improvement or some other class of work alteration or addition or change, whatever one likes to call it. I do not regard it as coming under that category rather than a matter of repair".

It is to be noted in particular that there the finding was as a matter of fact and degree that the replacing of the roof was not a substantial difference.

In the present case, if I read further in the inspector's decision letter, in response to the claim made by the appellant as set out in the first sentence of paragraph 13:

"You maintain that the building on this site is not new and that the works which have been undertaken are repairs necessitated by the extremely dilapidated condition of the original building".

The inspector found after considering all the facts and evidence that he had been given, including photographs, as set out in paragraphs 14, 15, 16, 18 and 19, said in paragraph 20:

"There is no dispute that the original barn needed repair and the Council's building control officer accepted in cross examination that, on the basis of your photographs, substantial work was required. It would be reasonable for these repairs to have involved the underpinning of foundations and the replacement of crumbling brickwork, rotten timbers and damaged roof covering. However, where the work extends to the removal and reconstruction of the walls, foundations and roof of the original building, as in this case, it can no longer be described as repair. The Council's evidence and photographs provide a clear record of the work which has been carried out to the former barn. I am satisfied, on the basis of this evidence and my inspection, that the work which has been carried out goes far beyond anything that could be reasonably be interpreted as repair. In my judgment the original barn has been replaced with a structure which is substantially higher and which has newly constructed foundations, walls and roof. I conclude that, as a matter of fact and degree, the structure which is the subject of this notice amounts to a new building. The development referred to in the allegation has therefore taken place and the appeal on ground (b) fails".

It is manifest from this that the inspector was correctly considering this case as one of fact and degree, as he said expressly and in line with, even if he did not have it in mind, the principle in Sainty and Hewlett and that he found that the original barn had been replaced with a structure which is substantially higher as well as having newly constructed foundations.

That circumstance seems to me at once to distinguish the case on the facts from both the Chancery cases to which I have been referred, and, furthermore, and more particularly, it appears to me that the inspector was directing himself properly according to the wellestablished principle in these cases to the effect that he must, as a matter of fact and degree, make a decision as to whether or not the works which had been carried out were properly works of repair or whether those works had produced something which was substantially different from that which had originally existed. In the circumstances, I can find nothing wrong with the inspector's finding of fact.

I repeat that points two and three in the Notice of Motion have not been proceeded with and that point one was argued in an entirely different fashion from the Notice of Motion. Accordingly, I refuse leave.

MISS LIEVEN: My Lord, in those circumstances I ask for my costs.

THE DEPUTY JUDGE: I do not think you can resist that, can you, Mr Aslangul?

MR ASLANGUL: My Lord, no.