Silver v Secretary of State for Communities and Local Government [2014] EWHC 2729 (Admin)

Silver v Secretary of State for Communities and Local Government and London Borough of Camden [2014] EWHC 2729 (Admin) concerned an extension built substantially differently from an earlier approved scheme and whether earlier demolition and excavation had lawfully implemented the original permission.

The High Court rejected the challenge to the Inspector’s finding that the earlier permission had not been implemented. Supperstone J held that the Inspector had lawfully applied the approach in Commercial Land when assessing the works as a whole, and also rejected a challenge to the fundamental validity of an enforcement notice.

Court: High Court, Queen’s Bench Division (Planning Court). Judge: Supperstone J. Judgment date: 1 August 2014. Case numbers: CO/1623/2014 and CO/1626/2014.

The Belsize Conservation Area extension

The dispute arose at a residential building in Lancaster Grove, Camden, within the Belsize Conservation Area. Permission granted in January 2008 authorised a basement and rear extension connected with an existing flat. It contained a January 2011 commencement deadline and conditions requiring the prior approval of tree-protection measures and landscaping details.

Shortly before the deadline, an existing extension was demolished and basement excavation was undertaken. The owner later pursued an altered design. The resulting basement and ground-floor extension differed from the 2008 approved plans, and the council refused retrospective planning permission in 2012. It served an enforcement notice requiring the removal of the unauthorised extension.

An Inspector dismissed both the planning appeal and the enforcement appeal. Among the planning issues were harm to the conservation area’s character, neighbouring amenity, and uncertainty about drainage and structural impacts. The earlier permission was advanced as a less harmful fallback, but the Inspector concluded that it had not been lawfully implemented.

Material departures and the commencement test

The issue under section 56 of the Town and Country Planning Act 1990 was not simply whether demolition constituted a material operation. It was whether the operations relied upon were comprised in the development that had been permitted. The Inspector compared the authorised scheme with the works actually undertaken, including differences in the roof, footprint, position, windows and relationship with the existing building.

Supperstone J considered the reasoning in Commercial Land and in Green v Secretary of State for Communities and Local Government [2013] EWHC 3980 (Admin). He held that the Inspector’s conclusion about the substantial differences was a rational exercise of planning judgment. The court rejected the owner’s argument that demolition alone had preserved the 2008 permission irrespective of the subsequently built development.

It remains possible for limited material operations to implement a permission. Equally, small deviations need not always be fatal. Silver confirms that the decision maker is entitled to consider the works as a whole, including the significance of departures from the permission, rather than isolating only a compliant portion of a materially different scheme.

Tree conditions and the fallback argument

The Inspector also considered a condition requiring the approval of details for protection of retained trees before works began. He regarded this as going to the heart of the permission and distinguished it from the landscaping condition. Although the court did not need to resolve this issue to decide the commencement challenge, Supperstone J concluded that the Inspector’s assessment of the importance of the tree-protection condition was not irrational.

The court examined the owner’s argument that the original approved development remained a fallback. The premise that the 2008 permission had been lawfully implemented failed. There were also findings about uncertainty in the approved plans and whether an enforcement notice could sensibly require works to be altered to an expired scheme. The relevant fallback cannot be assumed to be available without considering its actual legal status and practical prospects.

The enforcement notice was not a nullity

The owner challenged the notice because the council had earlier misunderstood the scale of some drawings. Supperstone J assessed the notice on its own wording. The council had maintained the substance of its reasons for enforcement notwithstanding the corrected scale, and the Inspector had been entitled to accept those reasons. An error in the evidence informing the decision did not, on these facts, render the notice invalid on its face.

Decision and significance

The High Court refused the application under section 288. In relation to section 289, it granted permission to appeal against the Inspector’s enforcement appeal decision but dismissed the substantive appeal because no error of law was established. The result was therefore not permission for the extension, nor an order quashing the enforcement notice.

The decision is relevant to commencement disputes, material departures, conditions precedent and the validity of enforcement notices. Its application must be read with later authorities, including Atwill and Southwood, which address different facts and results. This entry is based on the complete 15-page approved judgment supplied to Planning Geek.