Samuel Smith Old Brewery (Tadcaster) v Redcar and Cleveland Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lane |
| Judgment Date | 20 April 2023 |
| Neutral Citation | [2023] EWHC 878 (Admin) |
| Docket Number | Case No: CO/4792/2022 |
| Court | King's Bench Division (Administrative Court) |
The King (on the application of)
[2023] EWHC 878 (Admin)
Mr Justice Lane
Case No: CO/4792/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms V Hutton (instructed by Pinsent Masons LLP) for the Claimant
Mr P Robson (instructed by Legal Services, Redcar and Cleveland Borough Council)) for the Defendant
Hearing date: 23 February 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives (see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).
Section 78 of the Building Act 1984 (“the 1984 Act”) gives a local authority power to take steps to deal with a building or structure which is in a dangerous state, such that immediate action is needed to remove the danger. The central issue in this judicial review is whether section 78 abrogates the need to obtain planning permission, where this would otherwise be required in order to undertake the necessary steps.
A. BACKGROUND
The application for judicial review is brought with permission granted by Garnham J at a hearing on 12 January 2023. It concerns the former Arlington Chapel and School House in Saltburn-by-the-Sea (“the Property”).
The Property, which is owned by the defendant, is situated within the Loftus Conservation Area. The claimant is the owner of the Arlington Hotel, which is situated immediately adjacent to the Property and shares a party wall with it.
In November 2021, the defendant made a planning application, (“the 2021 Application”), which proposed the demolition of the Property. The 2021 Application was supported by a number of documents including a Structural Commentary, written by Scurator Ltd, and a Planning and Heritage Statement prepared by the defendant.
The Structural Commentary detailed the poor condition of the Property. The author stated that he had previously visited the Property in 2019 and that its fabric had deteriorated further since then, to the point that it was unsafe to enter without appropriate measures being implemented by a suitably experienced contractor. The Structural Commentary concluded that the state of disrepair of the Property was such that it was considered unviable to undertake measures to repair/rectify it. The author recommended that, given its current state and level of works required to make it stable and reusable, the Property should be demolished by a suitably qualified contractor.
Having addressed the Structural Commentary, the Planning and Heritage Statement concluded that measures to repair/rectify the structural defects would be economically unviable.
The claimant objected to the 2021 Application and that application was withdrawn by the defendant in December 2021. The defendant has not made any other application for planning permission to demolish the Property and does not have planning permission to do so.
In April 2022, the defendant instructed Billingshurst George & Partners (“BGP”) to survey the Property. The purpose of this survey was to support a further planning application. BGP undertook a site visit in May 2022 and produced a report on 4 July 2022. The report raised immediate safety concerns, including with regard to coping stones to the south-facing elevation of the Chapel and recommended that the public footpath next to it should be cordoned off. The report concluded that the Property should ultimately be demolished in its entirety and that the structures were in such a precarious condition that any attempt to undertake structural repairs would no doubt result in possible collapse. Even removing debris was likely to have a similar outcome.
A briefing note dated 8 September 2022 (“the September briefing note”) has been disclosed by the defendant in the course of these proceedings. The September briefing note was from an Officer of the defendant to the Managing Director of the defendant. It records that the defendant undertook the works which the BGP report recommended were urgently necessary.
The defendant appears to have received some further advice from BGP, concerning the potential for snow loadings to cause the roof of the Chapel to collapse.
The September briefing note identified three options for the defendant to pursue: (i) a planning application; (ii) a notice under section 78 of the 1984 Act; and (iii) temporary works to shore up the Chapel pending a planning application.
The September briefing note advised that there would be delay in obtaining planning permission (which the local planning authority had stated would be required for demolition). It opined that demolition using section 78 of the 1984 Act but without planning permission would be a criminal offence. It was considered that there would, however, be a defence to any prosecution. The note also said there was a risk of legal challenge if section 78 were invoked.
At some point after 4 July 2022, the defendant instructed counsel to advise on whether a judicial review of the defendant's decision to proceed to demolish the Property under section 78 of the 1984 Act would be likely to succeed; and whether an application for a private prosecution under section 196D of the Town and Country Planning Act 1990 (“the 1990 Act”) would be likely to succeed.
The defendant has waived privilege and disclosed the resulting opinion of counsel, dated 29 September 2022. The import of the advice was that demolition did require planning permission and would amount to a criminal offence under the 1990 Act, if carried out without such permission. Counsel considered, however, that if demolition was carried out under section 78 of the 1984 Act, this would be likely to constitute a defence under section 196D of the 1990 Act.
In October 2022, the defendant instructed Building Design Northern (“BDN”) to conduct a survey of the Property. The BDN report is dated 3 November 2022. It highlighted that impending winter weather would bring a real risk of collapse of the roof of the Chapel. The BDN report made no comment in relation to the roof of the School House.
The BDN report concluded that “the most appropriate course of action would be to dismantle the building in a controlled manner, which would pose the least threat of a collapse”. A risk analysis table, contained in the report, included two options. The first was to “dismantle the building by hand in a controlled manner”. The second was to “introduce scaffold to roof level supporting trusses”. The risk assessment categorised the first option as “no risk” and the second option as “medium or low risk”.
A briefing note dated 4 November 2022 (“the November briefing note”) was prepared by the defendant's Place Development and Investment Team. The November briefing note was addressed to the defendant's Managing Director. Its purpose was to “present the findings of further evidence gathered, to accompany a delegated decision”. The November briefing note appended various documents, including counsel's opinion, and internal legal advice which has not been disclosed.
A Delegated Power Record (“DPR”) whose date of exercise was 18 November 2022 contains the reasons for the decision to demolish. The DPR stated that the demolition of the Chapel was urgently needed in order “to mitigate the risk of building collapse during the winter months if a snow load is applied to the roof of the building”. There were said to be no alternative options available “to practically mitigate the risk prior to the winter months”. Although a temporary supporting structure could be considered, its design and cost would “fall outside practical boundaries…”. It was also said that the structural report warned that “any repair works, including temporary works, may impact the structural integrity of the building”.
On 18 November 2022, the defendant sent a letter to the claimant, stating its intention to demolish the Property under section 78 of the 1984 Act. The letter explained that two independent structural assessments had been commissioned by the defendant, which had confirmed the derelict state of the Property and the risk of collapse, which had increased due to the impending winter weather, with the likelihood of increased wind and snow fall. The defendant did not, at that point, disclose any of the reports. The letter went on to say that, given the serious risk to the public, the defendant would proceed to demolish without delay and that work had already been undertaken “to secure immediate risk items to the building copings and the site secured.”
On 30 November 2022, the claimant's planning consultants wrote to the defendant to object to the demolition proposal. Amongst other things, the letter described why, in the authors' view, the Property contributed to the Conservation Area, despite the fact that the buildings were “incongruous in the street scene”. The consultants said it appeared the defendant's own inaction over a period of years had led to the Property becoming unsafe. The letter advised that demolition without planning permission would be a criminal offence.
No response was received to that letter. On 8 December 2022, the claimant became aware that contractors were present at the Property and appeared to be commencing demolition works. It was observed that a notice on the defendant's website said a company had been appointed to carry out such works.
Shortly after, the claimant sought an injunction in the High Court to restrain the defendant from demolishing the Property. On 12 January 2023, Garnham J refused the injunction application. He did, however, grant permission to bring judicial review of the decision to demolish and...
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