A developer who was ordered to tear down a block of flats which he had built too tall has triumphed in a Court of Appeal test case which established that planning inspectors have a degree of flexibility when considering such cases.
The developer had in 2005 been granted planning permission to construct a three-storey block in North London. The building was to comprise retail premises on the ground floor and six flats above. The development was completed in 2009, but the block was built to four storeys, rather than three, providing space for a seventh flat. The roof arrangements were also different from those which had been approved.
The London Borough of Hackney issued an enforcement notice, requiring demolition of the whole building on the basis that it was excessive in height and out of scale with the character of other properties in the area. The developer pleaded that the requirement to permanently and completely remove the building was excessive and unnecessary to remedy any perceived injury to amenity. However, the enforcement notice was upheld by a planning inspector.
That decision was subsequently overturned by the High Court on the basis that removal of the building’s unauthorised fourth storey represented ‘an obvious alternative’ to complete demolition. In challenging that ruling, the Secretary of State for Communities and Local Government argued that the inspector was correct to find that that he had no power to authorise development in line with the 2005 planning permission, which had by that stage lapsed.
Dismissing the appeal, however, the Court of Appeal found that the inspector’s role had sufficient flexibility to enable him to consider whether the removal of the building’s fourth storey would be a reasonable means of overcoming the planning difficulties at less cost and less disruption. The inspector could reasonably have concluded that the 2005 scheme was to be regarded as part of the development as built and would thus have had power to grant planning consent in line with the 2005 permission and to vary the enforcement notice accordingly. The inspector had fallen into error in failing to consider the obvious alternative to total demolition and there would have been no ‘injustice’ to the local planning authority had he done so.