No consent? No sympathy …

Publication March 2018

The court has come down like a ton of bricks on a developer carrying out unauthorised works.

In Hargrave House Limited & Anr. v Highbury Corner Magistrates Court & Anr. [2018] EWHC 279, a developer purchased a residential property in North London. Concrete render was applied to the exterior of the building and painted white.

An enforcement notice was served, alleging that the installation of white painted render over the front and rear elevations of a red brick townhouse in a conservation area was a breach of planning control. The notice required the removal of the render and the repair of any damage caused to the building's fabric. The developer did not comply and the Local Planning Authority instigated prosecution proceedings.

At the initial hearing the developer relied on the statutory defence that it did everything that it could be expected to do to secure compliance with the notice. The developer produced expert evidence indicating that the removal of the render would irreparably damage the bricks underneath which would necessitate the demolition and rebuilding of the exterior walls, arguing that demolition and rebuilding went beyond the repair required to comply with the enforcement notice.

Could the enforcement notice requiring the developer to repair the property encompass the demolition of the rendered front and rear walls and their rebuilding with replacement bricks?

The High Court said that while there was no definition of “repair” in the relevant planning legislation, this must be because it had been considered unnecessary. “Repair” is an ordinary English word and its meaning is context specific. In the context of an enforcement notice requiring a breach of planning regulations to be remedied, the necessary repairs depended on the extent of the breach. In this case the walls had been completely rendered and painted, so repair would extend to demolition and rebuilding.

An expensive way to discover that compliance with planning requirements is not optional …


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