The local authority owned a property which was situated in a conservation area immediately adjacent to a hotel owned by the claimant. The property was in a state of disrepair and structural assessments commissioned by the authority concluded that repairing the structural defects would be economically unviable, and that the property ought to be demolished due to risk of collapse. The authority notified the claimant of its intention to demolish the property pursuant to its power, under section 78 of the Building Act 1984, to take steps to deal with a building or structure which was in a dangerous state such that immediate action was needed to remove the danger. The notification confirmed the derelict state of the property, the risk of collapse and that, given the serious risk to the public, the authority would proceed to demolish without delay. The claimant objected to the demolition proposal and later became aware that demolition works appeared to have commenced. It sought judicial review challenging the demolition as being unlawful on the basis, inter alia, that section 78 of the 1984 Act did not remove the need for the authority to seek planning permission for the “development” constituted by the demolition work under section 57 of the Town and Country Planning Act 1990 and that the authority had also breached section 196D which made it an offence to demolish unlisted buildings in conservation areas without planning permission.
On the claim for judicial review—
Held, claim allowed. The purpose of section 78 of the Building Act 1984 was to confer a power on a local authority which enabled it to carry out urgent works on the property of another, but it did not provide an exemption from planning control. Therefore, section 78 did not abrogate the controls in the town and planning legislation, which were intended to operate as a “comprehensive code”, and offered no “carve out” from the requirement to obtain planning permission where this was required in respect of steps to be taken by a local authority acting under section 78, including where the works in question constituted development within the meaning of section 55 of the 1990 Act. That interpretation of the legislation did not produce absurd or unreasonable results since the authority, like any other owner, could seek to regularise the position regarding planning permission after the event, or could legitimately demonstrate why enforcement action by the local planning authority under Part VII of the 1990 Act would be inappropriate. Moreover, if there was simply not enough time to obtain planning permission for demolition, then the authority, just like any other owner who took action to address the danger, would be able to rely upon the defence in section 196D(4) of the 1990 Act in the event that a prosecution was brought for carrying out demolition without planning permission. The very existence of that defence meant that it was unlikely that a prosecution would even be brought (paras 62, 77, 79, 85, 86, 89–91).
(2) It followed from the foregoing that planning permission had been required before the local authority commenced demolition of the property. However, its failure to obtain such permission did not mean that it had acted outside the powers of section 78. In such circumstances the appropriate form of relief was a declaration rather than the quashing of the authority’s decision (paras 92–94).
Victoria Hutton (instructed by Pinsent Masons LLP) for the claimant.
Philip Robson (instructed by Legal Services, Redcar and Cleveland Borough Council, Redcar) for the local authority.