Two sad stories, presented without further comment.
Fire 1
Everyone will remember the case of the Crooked House pub in Dudley.
For a summary of the relevant facts, I turn to Mould J, in the opening passages of his judgment in ATE Farms Limited v Secretary of State (Mould J, 5 February 2025):
“The Crooked House used to operate as a public house well known for its tilted appearance both within and outside. The causes of the differential settlement resulting in that appearance and evident in the building are possibly various, including the underlying natural geology and the impact of historic mining activity. The pub closed in July 2023 apparently following a burglary which had caused considerable and costly damage. The appellant purchased the land on 21 July 2023.
On 5 August 2023 the building was seriously damaged by fire, the cause of which, and in particular whether it was caused deliberately by criminal action, are currently the subject of a police investigation. On 7 August 2023 the fire-damaged building was demolished by contractors acting on the instruction of the appellant.”
South Staffordshire Council issued an enforcement notice on 27 February 2024, alleging that without planning permission the Crooked House, an unlisted building, was demolished and that this was unauthorised development constituting a breach of planning control. “The appellant’s case is that those demolition works were initially agreed to by the second respondent, but that they led to an urgent risk of collapse and justified the immediate demolition of the remaining structure.”
“The enforcement notice requires the Crooked House to be rebuilt effectively so as to reinstate it in facsimile.”
“On 27 September 2024 the [council] requested that the appeal inquiry be adjourned until after the police investigation into the fire had been concluded, because the cause of the fire and whether it had occurred through human agency could be a key issue for the inquiry to resolve. On 18 October 2024 the Crown Prosecution Service wrote to the inspector notifying him that their current expectation was that the criminal investigation and any decisions on prosecution would be completed by the end of 2024. That letter included the following:
“As the Appeal touches upon an issue a criminal court may be asked to determine, we request that consideration be given to adjourning the appeal to allow time for the CPS to conclude its review. While we appreciate a decision not to charge a person with any criminal offence will not assist either party to the Appeal, a decision to prosecute may have a bearing on the Appeal and could also impact the criminal proceedings should the appeal be held in tandem.”
“On 15 November 2024 the appellant requested that the inspector postpone the start date for the inquiry on the grounds of fairness and prejudice to the criminal proceedings and pending completion of any criminal process.”
Following further representations by both parties, the inspector issued a note:
“As I am sure you understand, the Inspectorate has a duty to determine appeals in a timely manner, in particular where there is considerable local interest, hence our reluctance to postpone the inquiry. Timescales for the outcome of investigations and any subsequent Court proceedings are uncertain. If there is a court case this could take several years before we even began to consider the planning merits of the demolition of the building. Such a delay also ignores the question, how relevant is the issue of responsibility to the determination of the various grounds of appeal? This is still a matter of dispute between the parties.
In this regard, before I consider who was responsible for the fire, should that become necessary, there are a number of more fundamental questions to answer:
1.Can a fire be an act of demolition for the purposes of the 1990 Act?
2. If it can, does it matter who was responsible for the fire in so far as this may be relevant to the grounds of appeal?
3. Is there a difference between a genuine accident (an act of God) and a deliberate act – regardless of who carried out the deliberate act in so far as it relates to the considerations under appeal?
The three questions above are essentially legal and interpretational issues (and I have already had your outline views on them) which should, I would suggest, be dealt with by way of submissions. Consequently, in order to continue with the current, agreed, timetable, I suggest the following process is followed. Both parties provide submissions on the above questions which will cover grounds (b) [whether the matters have occurred which are alleged to be in breach of planning control] and (c) [whether, if they did occur, they amounted to a breach of planning control] at the same time as proofs are submitted. Proofs of evidence should then be limited to grounds (a) and (g) which will be the only matters examined at the inquiry.
Without prejudice to my determination of the appeal, I consider, at this stage, that there are three likely outcomes of grounds (b) and (c). Firstly, that ground (b) succeeds so there has been no demolition in which case the notice will be quashed. Secondly that ground (b)/(c) succeeds to the extent that the allegation needs to be corrected so that demolition is restricted to the part of the building that remained after the fire; and, thirdly, the grounds fail and it is unnecessary to correct the notice. This last outcome is the main component of ground (a), should planning permission be granted for the demolition of the building?
For the inquiry ground (a) should be considered on the basis of either the second or third outcomes.
Should you consider any additional outcomes may arise from grounds (b) or (c), relevant to ground (a), these should also be addressed in your submissions and proofs of evidence. Having heard the evidence on grounds (a) and (g) [whether a longer period for compliance should be allowed] and discussed conditions I will then discuss how best to proceed.
At present I consider the best way forward would be to adjourn the inquiry to allow me to consider the written and oral evidence. If it turns out that further evidence is required concerning the identity of those responsible for the fire this can either be dealt with by way of further written representations or I can re-open the inquiry. It may be possible to reach a decision without further evidence in which case I could close the inquiry and issue the decision letter. I will ensure both main parties have an opportunity to address me on this before I adjourn the inquiry and before any final decision is issued.”
The appellant argued that the inquiry should be postponed pending the outcome of the criminal investigation but the inspector issued a final ruling, confirming that the inquiry would start on 11 March 2025.
The appellant challenged the inspector’s ruling by way of judicial review and Mould J agreed that it should be quashed and remitted to the inspector for reconsideration:
“Firstly, it is the appellant’s case that the question whether they were responsible for the fire which occurred on 5 August 2023 is central not only to the determination of the enforcement appeal generally, but in particular to the evaluation of, and the determination of, the issue raised under ground (a). Whether the fire was accidental or was caused by human agency, their case is that they are innocent of its occurrence. They therefore, understandably, contend that it would be grossly disproportionate to their rights protected under Article 1 of the First Protocol of the European Convention of Human Rights to require them to reinstate the building at very considerable cost, in the event that the answer to that first question was in their favour. The appellant says that would be a powerful material consideration in support of the grant of planning permission retrospectively for the demolition of the building.”
“There is simply no realistic possibility that consideration of the ground (a) appeal at the forthcoming inquiry, let alone its determination, will be able to proceed without the inspector grappling with those questions of fact and causation. In my view, the inspector clearly misdirected himself in proceeding on the basis that he may be able to determine the enforcement appeal on ground (a) or at all, independently of inquiring into and finding facts as to the cause of the fire, on a true understanding of the evidence.”
“I have considerable sympathy for the inspector in his desire to avoid unnecessary delay and postponement of the inquiry. Not only does that objective flow from the Procedure Rules, as I have indicated, but it was in any event an entirely reasonable and understandable objective for him to pursue. The question though is whether he has misdirected himself in seeking to achieve that.
It seems to me, for the reasons that I have given, that the approach that he has followed cannot, in truth, avoid delay in relation to the determination of the ground (a) appeal. In order to determine the ground (a) appeal, it is inevitable that the inspector will have to hear evidence and make findings of fact on the cause of the fire: in particular, as to whether the appellant was responsible for it. He must do so in order to establish the true factual matrix against which to determine whether retrospective planning permission is merited in vindication of the appellant’s Article 1 Protocol 1 rights. On a true analysis of the position, there is no proper basis upon which the inspector can avoid hearing such evidence in the context of the ground (a) appeal.”
And so the appeal remains in abeyance, pending the outcome of the criminal investigations.
Fire 2
Many of you will also have read about the more recent fire that destroyed a grade II* listed World War 1 aircraft hangar, hangar 3, at Old Sarum Airfield, Salisbury, on 17 April 2025. See for instance Protecting airfield is about ‘protecting heritage’ (BBC, 24 April 2025) and Council seeking legal advice after fire rips through Grade II-listed site with permission for hundreds of homes (Inside Housing, 23 April 2025).
The fire coincided with the final outcome of a planning appeal inquiry (appeal decision letter dated 9 April 2025 and costs decision letter dated 17 April 2025).
The appeal was for a mixed use scheme at Old Sarum Airfield including 315 dwellings and was allowed, albeit with the inspector rejecting the appellant’s case that the development could not viably support any affordable housing, instead concluding that the proposed development could viably deliver 25%. Condition 17 imposed a restriction on occupation of more than 160 dwellings until hangar 3 had been restored. There were no awards of costs.
For a more personal narrative (which I am in no position to verify), you may be interested to read Hashi Mohammed’s recent LinkedIn post, Hashi having appeared for Wiltshire Council at the inquiry.
Simon Ricketts, 27 April 2025
Personal views, et cetera
SIMONICITY 