Posted by: westlancashirerecord | April 9, 2017

Conserved Walls Cannot Come Tumbling Down

A judge of the High Court , His Honour Judge Jarman QC, has decided what he described as a “small but important point” regarding the proper approach to the demolition of walls in Conservation Areas. An appeal was made from a decision dated 2 September 2016 of an inspector appointed by respondent, the Secretary of State for Communities and Local Government, whereby an enforcement notice served by the interested party as the local planning authority (the authority) on the appellant was upheld. The inspector made her decision on the written representations of the parties

The alteration of a gate or wall in a Conservation Area  is permitted development, but the demolition of such structures is not permitted. An appellant had removed part of a wall in the Bath Conservation Area. The LPA served an enforcement notice requiring the wall to be reinstated and in an appeal against the enforcement notice, the Inspector found that the works amounted to demolition and not alteration such that they did not constitute permitted development.

In challenging that decision in the High Court, the appellant in Barton v SSCLG [2017] EWHC 573 (Admin) argued that by virtue of the House of Lords decision in Shimizu v Westminster City Council [1997] 1 WLR 168, the question of whether a wall in a Conservation Area had been demolished had to be considered by reference to the whole wall, rather than just the part of it that was subject to the works. As such, the removal of a 2.5m section of wall that ran to 25 m in total amounted to an alteration of the whole of the wall and not a demolition.

The High Court rejected that argument. Class B of the General Permitted Development Order provides that development is not permitted if it is a ‘relevant demolition’ as defined in s.196D of the TCPA 1990. ‘Relevant demolition’ means the demolition of a building in a Conservation Area and unless the context requires otherwise, must also include the demolition of part of a building (because of the definition of ‘building’ in s.336 of the Act).

There was nothing in the Act or in the decision in Shimizu that required a different interpretation to be accorded to the word ‘building’ in this context. Since that judgment was handed down, the statutory regime had changed. Development in Conservation Areas is now dealt with through the TCPA 1990 rather than the Listed Buildings and Conservation Areas Act 1990, so the need for consistency in approach towards listed buildings and conservation areas under that Act no longer arose. The role of the court was not to say whether there was a benefit in applying a consistent approach in respect of the controls that apply to Conservation Areas under the TCPA 1990 and listed buildings under the LBCAA 1990, but to interpret and apply the statutory provisions as they now stand. Those provisions made it clear that the demolition of part of a wall in a Conservation Area constituted development for which planning permission was required.

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