The High Court has come to the aid of a developer who exceeded his planning consent by building an extra storey on a block of flats. The Court ruled that a planning inspector had erred in law in failing to consider the possibility that, rather than having to be wholly demolished, the building could be saved if modified to conform to its originally authorised height and design.
The developer had been granted planning consent in 2005 for a three-storey block with a butterfly roof, comprising retail space on the ground floor and six flats above. However, the building constructed was substantially different from the approved plans in that it had four storeys, a flat roof and space for one extra flat.
The local authority refused to regularise the development by a grant of retrospective planning permission and issued an enforcement notice requiring demolition of the entire building. The developer’s argument that this requirement was excessive was subsequently dismissed by a government planning inspector.
Despite the developer’s contention that the requirement to remove the whole building was ‘unnecessary and punitive’, the inspector ruled that, as the original planning permission had expired prior to enforcement action being taken, he had no jurisdiction to vary the notice to require only partial demolition.
Allowing the developer’s appeal and directing a reconsideration of his case by the planning inspectorate, the Court ruled that the inspector had failed to address his mind to the ‘obvious alternative course’ of varying the notice whilst at the same time granting retrospective planning permission for the building to be remodelled to a height and design in conformity with the 2005 planning permission.