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Restaurant wins appeal over requirement to demolish sunroom that did not comply with planning permission

A Worcestershire restaurant has won an appeal over whether it must demolish a sunroom built in breach of planning consent.

In Bhandal & Ors v Secretary of State for Housing, Communities & Local Government & Anor [2020] Mr Justice Pepperall ruled that Baljit, Balbir and Amrik Singh Bhandal had succeeded on one ground of their appeal against an inspector’s decision.

The Singh Bhandals own the Four Stones Restaurant in Clent, Worcestershire. In July 2016, Bromsgrove District Council granted planning permission to demolish a sunroom at its front and build a replacement with a flat roof.

Pepperall J noted: “The replacement building was not, however, built in compliance with the planning permission.”

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It had a different number of glazed panels on the front elevation, the upper front elevation was glazed contrary to what was approved and the roof was sloping rather than flat, higher than allowed and with an unapproved projecting canopy and support columns.

Bromsgrove then refused permission for the sunroom as built, and after the Secretary of State refused an earlier appeal in April 2018 the council issued an enforcement notice requiring the removal of the unauthorised development by April 2019.

The family appealed again and proposed four alternatives: removal of the overhanging canopy; removal of the unauthorised roof and its replacement with a flat glazed roof; the same but with the upper section of the elevations compliant with the 2016 planning permission; provision to close the opening that would result from the removal of the sunroom.

Planning inspector J Whitfield, rejected the first option and concluded the other three were outwith his powers to grant planning permission.

He also rejected the argument that Bromsgrove’s enforcement notice exceeded what was necessary, but did allow the parties nine months to explore alternative schemes.

In their further appeal the Singh Bhandals argued that Mr Whitfield was wrong to conclude the second and third alternative developments would not form part of the matters constituting the breach of planning control because works would be required to build a new roof.

They also argued that the inspector had been wrong to refuse solutions short of demolition and that it was irrational to fail to grant permission to close the gap in the building that would arise from demolition of the sunroom.

Giving judgment, Pepperall J said: “Since virtually any alternative scheme is likely to involve at least some element of new work, the inspector's approach, if correct, would have the effect not just of significantly reducing the power to grant planning permission on an appeal against an enforcement notice but also significantly reducing the application of s.70C.

“This would not just emasculate the utility of the Secretary of State's power to grant permission where some alternative scheme would be acceptable, but it would add delay since the planning authority would then be required to consider a freestanding retrospective application.”

He said the inspector had erred and remitted the issue for fresh consideration.

“For the avoidance of doubt, I do not suggest that there is only one proper answer upon such reconsideration,” the judge said.

"I repeat that the inspector would be entitled to take the view that the extent of the new work required by either of the alternative developments would be such that they do not properly fall within the statutory power to grant planning permission. What an inspector is not, however, entitled to say is that the mere fact that any new work would be required is a complete answer to [this] appeal.” He said though the second ground argued “adds nothing”.

The Bhandals also argued that the inspector’s rejection of their application to close the gap that would arise were the sunroom demolished lacked common sense, as the restaurant “would be left with a gaping hole making the building both insecure and at the mercy of the elements”

But the judge said the court should not interfere with the inspector's conclusion that the installation of folding doors to cover this not form part of the development enforced against and the planning authority could consider its merits.

Mark Smulian

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