Wycombe District Council v Williams and others

Demolition of existing dwelling and erection of replacement — Section 52 agreement to demolish existing dwelling within one calendar month — Failure to comply with condition — Whether building same as that for which planning permission granted — Planning authority seeking specific performance — Order for specific performance grantedThe first defendants were at all material times the owners of Muswell Cottage, Moor Common, Lane End, Buckinghamshire. In 1985 they applied to the local planning authority (the plaintiffs) for planning permission to erect a replacement dwelling on land at Muswell Cottage and to demolish that dwelling. The plaintiff granted a conditional planning permission for a replacement dwelling subject to a section 52 agreement under the Town and Country Planning Act 1971 that Muswell Cottage would be demolished and removed not later than one calendar month from the date of the first ratable occupation of the new dwelling. The defendants sold their interest in the land, which had the benefit of the permission, to a third party and retained their interest in Muswell Cottage. The new dwelling was constructed and occupied in or about April 1989. It had amendments to various aspects of the scheme, both internal and external, as well as for permission, not originally granted, for a new double garage and for retrospective consent for the erection of retaining walls and an oil tank. The first defendants failed to demolish Muswell Cottage and the plaintiffs sought specific performance of the section 52 agreement. The defendants contended that the new house could not properly be described as that dwelling for which the original planning permission had been granted. They counter-claimed for a declaration concerning the interpretation of the section 52 agreement and the extent of their obligations thereunder. The plaintiffs submitted that a planning permission covered not only work which was specified in the detailed plans, but also any immaterial variation thereon: Lever Finance Ltd v Westminster (City) London Borough Council [1971] 1 QB 222. With few exceptions, the local authority had considered and approved each element of the development on the basis that it fell within the permission. In law those approvals were valid until the contrary was proven. Held The order for specific performance was granted. 1. The new building, despite the alterations to the original plan, was the replacement building envisaged in the section 52 agreement. 2. It was not therefore a substantially different development. 3. The defendants were in breach of the agreement and the plaintiffs were entitled to the order sought. Paul Brown (instructed by Sharpe Pritchard, London agents for the solicitor to Wycombe District Council) appeared for the local planning authority; Reziya Harrison (instructed by Cripps & Shone, of Marlow) appeared for the defendants.