Oates v Secretary of State for Communities and Local Government & Anor [2018] EWCA Civ 2229

The point in plain English: keeping some old walls, timbers or other fabric does not necessarily mean that a building project remains a conversion. The Court of Appeal confirmed that an Inspector can find that a new building has emerged and that the original building no longer exists as an independent structure.

In Oates, that finding defeated the owner’s argument that the retained material had to be protected from demolition. The court upheld the Inspector’s approach to an enforcement notice requiring three new buildings to be removed.

For me, the important caution is that this is a fact-and-degree assessment. Oates does not establish a percentage of fabric which must be retained, or a rule that every substantial alteration creates a new building.

The Oates case at a glance

• Court: Court of Appeal, Civil Division
• Judgment: 12th October 2018
• Neutral citation: [2018] EWCA Civ 2229
• Appellant: Graham Oates
• Respondent: Secretary of State for Communities and Local Government
• Interested party: Canterbury City Council
• Judges: Lord Kitchin, Lord Justice McCombe and Lord Justice Lindblom
• Outcome: appeals dismissed

What happened at Hoath Farm?

The dispute concerned three former chicken sheds at Hoath Farm, Bekesbourne Lane, Canterbury. They had been divided into six units, and an authorised change from agricultural use to business and storage uses had been implemented.

The planning history also included the former office-to-residential permitted development route. Crucially, the relevant permission concerned a change of use of the existing buildings. It did not authorise the extensive building operations subsequently undertaken.

Those operations included new external steel frames with their own foundations, replacement walls, new roofs and concrete floors. Parts of the original timber structures remained, but had been extensively repaired or replaced and incorporated into the resulting structures.

Canterbury issued an enforcement notice on 22nd August 2016 alleging the erection of three new buildings for residential use. It required their demolition and removal of the resulting material. A separate application for eight residential units had also been refused.

Why retained fabric did not settle the question

The Inspector considered the evidence, structural reports, photographs and what she saw on site. Her conclusion was that the structures were new buildings, rather than the old buildings with additions around them.

Mr Oates argued that the surviving parts of the earlier lawful buildings should be distinguished from the new work and protected. The Court of Appeal rejected that reading of the Inspector’s findings.

Lord Justice Lindblom explained at paragraph 38 that a building containing both new materials and usable elements of earlier structures may be a new building, or it may not. The circumstances of each case matter.

The court accepted the Inspector’s finding that the original buildings no longer existed as “recognizable, independent structures”. Their surviving fabric had become part of the new buildings. Retaining material therefore did not compel the conclusion that the original buildings survived.

This is why a schedule showing how many walls remain will not answer every case. The nature, extent and relationship of the works, and what physically exists afterwards, require assessment together.

Ground (b): identify what has actually been built

Ground (b) challenges whether the matters alleged in an enforcement notice occurred. In Oates, the relevant allegation was the erection of new buildings.

The Inspector’s factual conclusion supported that allegation. The Court of Appeal found no legal error in her assessment. It was not the court’s role to undertake a fresh planning judgment simply because the owner disagreed.

The practical starting point is therefore a reliable record of the original buildings and subsequent works. Dated photographs, accurate surveys, drawings, structural evidence and a coherent construction history can be central to a properly evidenced enforcement appeal.

Ground (f): demolition and over-enforcement

Ground (f) concerns whether the notice requires more than is necessary to remedy the breach or the relevant injury to amenity. Mr Oates proposed a draft schedule of lesser works intended to reinstate the earlier buildings.

The Inspector found that schedule insufficiently precise and incomplete. It did not adequately deal with all the operations undertaken. On the findings before her, she identified no obvious alternative which would remedy the breach and overcome the harm.

The Court of Appeal upheld that conclusion. Once the original buildings had ceased to exist and new unlawful buildings had replaced them, their retained components did not enjoy a separate protected status merely because the material was old.

This does not mean demolition must follow whenever a new building is identified. The actual breach, lawful rights, evidence and proposed lesser steps still matter. The case explains why the particular over-enforcement argument failed on these facts.

What happened to the earlier lawful use rights?

The owner relied on the principle that enforcement should not deprive a landowner of established lawful rights. The court accepted that principle but found no surviving rights in the new buildings which could assist him.

The residential occupation had begun after the operations created the new buildings. It was not an implemented residential change of use of the original structures. The earlier change-of-use permission could not be implemented in buildings which no longer existed.

At paragraph 50, the court left open the wider question of extending the Mansi principle to operational development. It was unnecessary to decide that issue because, on the Inspector’s findings, there was no surviving lawful development for it to protect. Oates should not be reported as conclusively deciding that wider question.

The High Court history

The Court of Appeal decision followed Oates v Secretary of State for Communities and Local Government [2017] EWHC 2716 (Admin), decided by His Honour Judge Waksman QC sitting as a deputy High Court judge.

The High Court had rejected challenges to the Inspector’s decisions. The Court of Appeal dismissed the subsequent appeals, with Lord Justice McCombe and Lord Kitchin agreeing with Lord Justice Lindblom. This entry treats the appellate judgment as the principal authority.

How we would use Oates in practice

For a conversion project, establish what the permission actually authorises before work begins. A change-of-use route is not necessarily permission for all the building operations needed to achieve the intended accommodation.

For an enforcement case, test the description of the breach against the full physical and documentary evidence. If lesser steps are proposed, explain precisely what will be removed, what will remain and how those steps remedy the breach.

Keep that assessment separate from enforcement time limits. Oates concerns the identity of the buildings and over-enforcement; it is not authority that retained fabric automatically establishes immunity or that every new building can still be enforced against regardless of its age.

Planning Geek can help assess the planning position and coordinate structural or legal input where needed. The judgment is available below to Gold members.