Skin deep

A recent appeal decision in Bucks (DCS Number 400-031-518) tells us that you can’t reclad the frame of a building if the frame isn’t there, despite the appellant’s contention to the contrary.

In this case, the inspector recorded, a derelict barn comprising essentially of a bare concrete frame had previously stood on the appeal site. Planning permission was sought for the recladding and reroofing of the then existing frame but the council treated that proposal as for a new agricultural building, rather than for recladding, and refused permission. However, permission was subsequently granted on appeal for ‘recladding and reroofing’ of the then existing frame, with that inspector treating the proposal at ‘face value’ as for recladding, rather than for a new building.

Works commenced on site seeking to implement the permission granted at appeal, with brickwork and blockwork walls built. During the construction process, however, it became apparent that the concrete frame had become unstable. This was therefore removed on the basis of health and safety advice received. Concerns were raised that the structure on site was not being built in accordance with the permission, and a temporary stop notice was served followed by an enforcement notice.

The council referred to the case of Williams v SSCLG & Chiltern DC in support of the proposition that, as the planning permission only authorised recladding of a then existing frame, the removal of that frame meant that development on site could not be authorised by that permission. The appellant, in contrast, relied upon the case of Basildon DC v SSE & Asplin. This was in support of the argument that, as the frame would not have been externally visible in the permitted building, the removal of that frame, in the absence of a condition requiring its retention, should not take the works outside of the permission. 

The inspector reasoned that, whilst it was unfortunate that the frame was found to be unsafe, it did not alter the fact that the permission was for the recladding of that frame and not for a new building. To her mind, the term ‘cladding’ meant an external covering or skin applied to a pre-existing structure. She found that removal of that pre-existing structure had the effect that the works undertaken did not constitute recladding but instead resulted in a new building. To find otherwise, she reasoned, would be to undermine the certainty of the clear wording of the permission which third parties relied upon. She agreed with the reasoning in Williams that apparent meaning of a permission (i.e. ‘recladding’) should not be altered by reference to what was not in the planning permission (i.e. a condition requiring the frame to be retained). In any event, she noted, in Asplin, it was commented that the framework of the building which was removed would not have contributed to the structural strength of the building, which contrasted with the case before her where permission was granted for recladding. 

The enforcement notice was upheld.

There are further cases relating to whether rebuilding/reconstruction requires permission at section 4.3116 of DCP Online.