Arnold v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove,MR JUSTICE DOVE |
| Judgment Date | 01 April 2015 |
| Neutral Citation | [2015] EWHC 1197 (Admin) |
| Date | 01 April 2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/14759/2013 |
[2015] EWHC 1197 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Dove
CO/14759/2013
Mr R Turney (instructed by Mishcon de Reya) appeared on behalf of the Claimant
Mr R Kohli and Ms S Bell (judgment only) (instructed by Government Legal Department) appeared on behalf of the Defendant
In 2006 the Appellants commenced residing in Blackheath Cottage in the village of Blackheath in Surrey. Guildford Borough Council are the Local Planning Authority for the area in which that property resides. The property is in the Green Belt and the Area of Outstanding Natural Beauty, but is not listed or in a conservation area.
The Appellants perceived shortcomings in their property and wished to remodel and improve it. In 2011, Lawful Development Certificates were obtained in relation to, firstly, a rear extension to the north of the property and secondly, a long front extension to the south of the property. Following obtaining of these Lawful Development Certificates, a building project commenced.
At the inquiry into subsequent enforcement proceedings, the history of project was found to have occurred by the Inspector as follows:
" 7. I have been presented with a whole raft of different plans and drawings. They demonstrate that the design of house the Arnolds were seeking to create evolved over time with numerous changes. Having said that although there were different stages of construction the main builder (Mr Brooks) explained that there was only one short break (around the end of December 2011 to early January 2012) in the building work. I therefore agree with the Council's submission that the stages were all part of one single building project that was being implemented with no significant gaps between the stages.
8. The Mr Arnold's (sic) evidence explains why they did not wish to pursue the development as shown on the plans that accompanied the LDCs or to completely demolish the house and start from scratch. A particular concern was that the width of the front extension shown on the LDC plans, following that of the existing front projection, which was felt to be too narrow and "would not achieve the goal of improving the flow of the home". Consequently consideration was given to widening this element. An informal view of whether this could be achieved by demolishing the side (west-facing wall) of the existing front projection was sought by the appellant's agent at that time (Jayne Wunderlich). The Council's response in an e-mail from Katie Williams dated 17 February 2011 was that if the side wall was first demolished it would not be treated as an original wall in any LDC application. I will come back to this point below but it is clear that this was only an informal view and not one which had the backing of a LDC.
9. The drawings that emerged as a consequence of these deliberations appear to be those of architect Ilse Kerr. She did not give evidence but states in a letter dated 2 August 2013 that she is a South African who knows the Arnolds personally and was involved in the Blackheath Cottage project from July 2011 until March 2012 when she went to join her family who were relocating to Australia. The plans, dated 26 September 2011, show a single storey rear extension of 4m deep and a 3 storey front extension of 6.85m wide projecting some considerable distance from the existing front wall. These plans differ materially from what was shown on those that supported the LDC. As well as the increase in width from 4.85m the length of the projection differs at basement and first floor levels.
10. There is some uncertainty as to which plans were being followed when the groundworks and foundation construction commenced on 19 September 2011 or the building works were started by Mr Brooks on 26 September 2011. Mr Brooks' oral evidence was vague on this matter. He said he did not check whether planning permission had been obtained for the building works he undertook — his normal practice. He said at one point that he only had footprint drawings to work to which show the majority of the existing walls retained but no elevations. However later in cross-examination he referred to seeing elevations before he started the project but could not recall when he was given these. This seems odd as it is apparent that Ms Kerr's Sketches 1 and 3 (26/09/11) show only floor plans and sections and no elevations. I therefore consider his evidence is unreliable in this respect as he could not stipulate what drawings (floor plans and/or elevations) he was building to.
11. Notwithstanding the lack of clarity in Mr Brooks' evidence, I have noted the comments in the statement of Mr Walker a structural engineer and director of AND Designs Ltd. This company was commissioned to provide the engineering solutions for the development that has taken place — the quotation letter being dated 1 August 2011. At paragraphs 6 and 7 of his statement he says "We received drawings for the sub-structure and refurbishment of the existing building from Ilse Kerr Architects". "We performed the calculations and structural designs based on the IK Arch drawings and in conjunction with Mr Arnold's conversations". These calculations and floor plan extracts have been provided and show the majority of the walls of the existing house retained but with new foundations to support the long front projection, which is partly cut into the ground.
12. What is curious is that where there are dates on the calculation sheets they are from October 2011 and that on the main basement plan is "Nov 11". So when the groundworks and foundation construction began in late September 2011 these plans and calculations would not have been in existence. Nevertheless, it seems likely that once the front extension had been demolished and the excavations for the new extensions had been undertaken that the engineering solution based on Ms Kerr's plans was the scheme being followed at least at the initial stages of construction. The Council do not demur from this conclusion but rightly point out that this scheme differed materially from what was lawful by virtue of the LDC for the front extension. The submission for the appellants is that this was the case but that the alternative scheme being pursued was also PD by virtue of the terms of the GPDO. This is a matter to address under ground (c).
13. I now set out the various stages of engineering works and construction that occurred based on the evidence before me and the timeline provided:
• Excavation of the front and rear extensions commenced on 26/09/11;
• The Arnolds move out into rented accommodation on 27/09/11 having already packed house contents into a storage container brought to the site;
• Stripping out of all internal fixtures and fittings (plumbing and electrics) within the house and demolition of the conservatory attached to east elevation on 28/09/11 and 10/10/11. Mr Arnold confirmed that everything went bar the walls, floors and ceilings;
• Scaffolding erected between 30/09/11 and 05/10/11 with the stripping of roof envelope (tiles, felt, battens) occurring from 03/10/11 to 12/10/11;
• Removal of the roof trusses over the eastern part of the house from 13-18/10/11; Mr Arnold said originally only the southern element was intended for removal but as this was providing a counter-balance for the northern (rear) element in terms of loading this needed to be removed as well;
• Demolition of the front extension walls in their entirety commencing on 21/10/11;
• Removal of the roof trusses over the western wing between 31/10/11 and 04/11/11 — the Arnolds decided this was necessary having received advice from the engineer concerning the structural failings and weaknesses in the existing roof frame;
• Discovery by bricklayer (Mr Edgington) (date not specified) that the first floor brickwork is constructed of inferior 'rat trap' bond with the recommendation that this be repaired or rebuilt. Also deficiencies in the length of the lintels to the ground floor openings;
• The Arnolds take the decision to demolish all the walls internal floors and ceilings save for the walls that remained which were underpinned by 11/11/11. This took place through November and early December with steel girders installed on between 23 and 25 November to support the retained walls and provide a frame for the new building work;
• By 14/12/11 all that remained of the original fabric was that shown in Mr Payne's photographs of that date;
• Subsequently any remains of the original floor slabs were removed and new concrete slabs laid. The new walls, roof frame, dormers and fenestration were installed thereafter."
It is evident from what I have set out above that it is common ground that the works which were undertaken did not directly implement the proposed works described in the LDCs.
As a result of the work, in paragraph 3 of the Inspector's decision letter, he notes as follows:
" It is common ground based on the evidence of witnesses from the main parties that the only elements of the original extended dwelling that remain are parts of the walls of the western wing. These can be generally described, based on the photographs supplied, as part of the south facing wall (to the top of ground floor windows), the two storey west facing gable (partly tile-hung) and a small section of supporting 'return' wall on the northern elevation. The rest of the existing dwelling, including all the slabs, footings and foundations...
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