Most people might think that one only has to use one’s eyes to see whether or not a building is undergoing demolition. However, a Court of Appeal ruling on a building contract dispute underlined the difficulty of defining the word ‘demolish’ in a planning context.
A property owner engaged a contractor to knock together two houses so as to create a single residence. The project proceeded for a time but works had to be suspended for a year after the local authority took the view that they amounted to demolition and that conservation area consent (CAC) was therefore required. A dispute developed between the owner and the contractor as to where contractual responsibility for the delay and its financial consequences rested.
Following a trial, a judge found that the project involved works of demolition for the purposes of Section 74 of the Planning (Listed Buildings and Conservation Areas) Act 1990. On that basis, he ruled that CAC was required and that the owner had failed in his implied contractual obligation to use all due diligence to obtain it. The contractor was entitled to a year-long extension in which to complete the works and was not liable to pay the owner damages in respect of the delay.
Challenging that outcome, the owner pointed out that party walls with adjoining properties, together with most of the front and rear elevations of the two houses, had been retained. Asserting that the project would have no significant impact on the character and appearance of the conservation area, he argued that the judge was wrong to find that it involved works of demolition and that CAC was required.
Dismissing his appeal, the Court acknowledged that the impact of the works on the conservation area’s character and appearance was of central importance to the question of whether CAC should be granted. However, it had no relevance to the council’s purely factual decision as to whether CAC was required. The judge was entitled to find on the evidence that the removal of large parts of the houses and the clearance of the site for redevelopment amounted to works of demolition.