Return to Contents Stéphanie Nicolle, QC "The most notorious quhe definition of development and an examination question chestnut, is whether demolition constitutes development" wrote John Alder in 1979 [1] . Some ten years earlier the Royal Courlled upon in Att. Gen. v Ferey [2] to answer the notorious query and did so with a simple rule of thumb which has remained undisturbed for close on thirty years. The purpose of the present note is to consider whether on that particular point Ferey was rightly decided in the first place, and, even if it was, whether it can still be regarded as good law in the light of subsequent English case law. The facts of Ferey are simple. The defendant had obtained development permission for the erection of three detached houses. The plans which were approved indicated that three derelict buildings on the site were to be demolished. The new houses were erected but one of the three derelict buildings was not demolished. The developer was prosecuted for having carried out development on the site without the grant of permission as required by Article 5 of the Island Planning (Jersey) Law, 1964 ("the 1964 Law"), the underlying argument being that as a building which the approved plans had indicated was to be demolished had not been demolished, the developer had developed the site otherwise than in accordance with the plans and had thus carried out development without the grant of permission. Central to the determination of the case was, in the view of the Court, the question whether demolition constituted development within the meaning of the 1964 Law. The definition of "development" for the purposes of the 1964 Law is contained in Article 5 of that Law. So far as it is material to the present note, the definition runs as follows - " (2) In this Law, unless the context otherwise requires, "development" means - (a) the carrying out of building, engineering, mining or other operations in, on, over or under land;" The expression "building operations" is defined in Article 1(1) to include - "rebuilding operations, structural alterations of and additions to buildings, and other operations normally undertaken by a person carrying on business as a builder". The Court in Ferey decided that the only relevant part of the definition was that relating to building or other operations, disregarding for reasons not disclosed by the judgment the potential relevance of engineering operations. At page 979 the Deputy Bailiff said - "The first question which arises is whether the demolition of a building comes within the definition, a question which, in our opinion, can be answered only in the light of the circumstances of the particular case. The extreme example is work consisting exclusively of the total demolition of a building. Is this a building or other operation? To interpret "other operation" the ejusdem generis rule must be applied, but, in relation to building operations, one cannot justifiably extend the meaning of the expression beyond that attributed to it in the definition of "building operations", that is to say "other operations normally undertaken by a person carrying on business as a builder". We conceive that a builder is a man who undertakes works of construction and would not normally undertake work consisting of demolition only. Thus, demolition, not accompanied by work of any other kind, would not in our opinion amount to development. On the other hand, works carried out by a builder may well necessitate the demolition of an existing or part of an existing building. If so, the demolition is an operation normally undertaken by a person carrying on the business of a builder and is therefore "development" within the meaning of the Planning Law. We therefore conclude that the development proposed to be carried out by the defendant in this case included the demolition of the existing buildings. In arriving at this conclusion, we have had regard to two English cases cited to us. They are Marks and Spencer Limited v. London County Council and others [1952] 1 Ch. 549; affirmed [1953] A.C. 535, and Coleshill & District Investment Co Limited v. Minister of Housing and Local Government and another (1967) 19 P. & C.R. 157." The essence of this ruling is that demolition not accompanied by work of any other kind is not development but that if works (by implication, of construction) carried out by a builder necessitate the demolition of an existing building or part of an existing building, the demolition ipso facto becomes an operation normally undertaken by a person carrying on the business of a builder and thus development. The simplicity of that test, superficially attractive though it seems at first sight, can, like all over simplifications, lapse into absurdity on the minutest variation of the facts upon which the case was decided. The proposition that demolition should be development if carried out in order to construct something else is simple enough, but how can it be argued with any degree of seriousness that if a builder who habitually carries out such work demolishes two identical adjoining houses, intending to build another house on the site of house A and to use site B as a car park, the demolition of house A is an operation normally undertaken by a person carrying on business as a builder and thus development, but the demolition of house B is not? If half-way through the demolition works the builder changes his mind and decides to use site A as a car park and to redevelop site B, would the demolition of house A, which up till then had been development within the interpretation of Ferey, cease to be so, and would the demolition of house B, which up till then not been development, suddenly become so? The Royal Court's thinking appears to have turned in part upon the fact that the Committee could have imposed a specific condition requiring demolition of the buildings when granting permission for the erection of the new buildings and in part upon its own dictum that a builder is a man who undertakes works of construction and would not normally undertake work consisting of demolition only. As regards the former, it was no doubt very true in the case with which the Court was concerned, but it leaves unanswered the question as to what the Court would have held had the owner of a property simply demolished it without any prior application to the Committee at all. As regards the latter, there is no indication that it is anything other than the Court's own assumption, unsupported by any evidence, as to what is or is not normally undertaken by builders in the ordinary course of business. Ferey was, of course, decided nearly thirty years ago. The judgment relied upon English case law, and if English case law has developed in the interim it is necessary to re-examine the Ferey judgment in the light of subsequent English case law. Of particular relevance is the decision of the Court of Appeal in Cambridge City Council v Secretary of State for the Environment and Milton Park Investments Ltd. [3], a case turned specifically upon whether the demolition of a building was development. In the judgment at first instance the judge held that the total demolition of ordinary dwelling houses constituted an operation normally undertaken by a person carrying on a business as a builder, was therefore a building operation within the meaning of section 290 of the Town and Country Planning Act 1971, and was thus development within the meaning of section 22(1) of that Act. The definition of development in section 22(1) of the 1971 Act is for all relevant purposes similar to the definition of development in paragraph (2)(a) of Article 5 of the 1964 Law, and the definition of building operations in section 290(1) of the 1971 Act is in the same terms as the definition of building operations in paragraph (1) of Article 1 of the 1964 Law. By the time the case reached the Court of Appeal the 1971 Act had been repealed and replaced by the Town and Country Planning Act 1990, so that the references to sections 22(1) and 290(1) of the 1971 Act became references to sections 55(1) and 336(1) respectively of the 1990 Act; there was no significant variation in the wording. The Court of Appeal reversed the decision of the court below, not on the ground that demolition can never be development but on the ground that the judge was wrong to hold that the works of demolition in question were "operations normally undertaken by a person carrying on a business as a builder", because that was a question of fact for the inspector who had made no finding of fact and about which there was no evidence before him, so that there was thus no material upon which the judge could find as he did. At page 269 of the report of the Court of Appeal's decision Glidewell L.J. said: "In my view the decisions in Marks & Spencer v London County Council, Coleshill v Minister of Housing and Local Government and Iddenden v Secretary of State for the Environment establish the following propositions: (a) Works for the demolition of a building may, but do not necessarily or inevitably, constitute "development" within the meaning of section 55 of the Act of 1990. (b) Such works constitute "development" if, but only if, they are properly to be regarded as either
(i) "building operations" as defined in section 336(1) of the Act; or
(ii) "engineering operations"; or (iii) "other operations ... on ... land."
(c) Demolition works may be building operations if they are a part of "structural alterations of ... buildings," as in Coleshill. In such a case the demolition will inevitably be partial only, since if it were total there would be no building left to be altered.
(d) Demolition works of a particular type or scale may be "operations normally undertaken by a person carrying on business as a builder." (e) Demolition works of particular structures e.g. the embankments in Coleshill, may be "engineering operations." (f) Whether works of demolition are within any of these categories of development is a question of fact for the decision maker - the Secretary of State or, as in the present case, the inspector to whom he has delegated the decision. (g) ... (h) ... (i) Whether particular works of demolition constitute development within the statutory definition must be decided in relation to those works, and not to other projected works to which the demolition is a preliminary. "In planning law they are different operations": (per Lord Denning M.R. in Iddenden). The Marks & Spencer decision does not controvert this proposition. In that case the works of demolition were held to be "works for the erection of [sic] alteration of a building" which, as Jenkins L.J. made clear, is a phrase with a wider meaning than "building operations," and apt to include preliminary works of demolition." Both Marks and Spencer v London C.C. and Coleshill v Minister of Housing and Local Government had been relied on by the Royal Court in Ferey, though obviously without the benefit of the Court of Appeal's subsequent analysis. On the crucial question whether the judge in the Court below was right to hold that the works of demolition were "operations normally undertaken by a person carrying on business as a builder", Glidewell L.J. said at page 270: "Was the judge right to find that they were "operations normally undertaken by a person carrying on business as a builder"? I have already said that this was a question of fact for the inspector. The judge said: ‘I take the view that the demolition of these houses is a "building operation," that is an "other operation normally undertaken by a person carrying on business as a builder" ... the pulling down of ordinary dwelling houses like these seems to me unquestionably within the scope of a builder's business, whether he goes on to develop the site afterwards or not.’ Mr. Moriarty [counsel for the Secretary of State] and Lord Silsoe [counsel for Milton Park Investments Ltd] argue that the judge was not entitled to make this finding of fact. It was a matter upon which the inspector had made no finding of fact, and about which there was no evidence before him or the judge. There was thus no material upon which the judge could find as he did. I agree with these submissions. It is clear that this issue was not canvassed before the inspector - there is no word of it in the written representations. If he had been asked to consider it, he might have said that he required evidence of the normal scope of a builder's business, or he might have been able to make a decision from his own expert knowledge. In the absence, however, of such a finding by the inspector and of evidence, there was no material upon which the judge could reach his conclusion. Despite his undoubted expertise, he was not sitting as a tribunal finding facts." Applying this to the Ferey case, it immediately calls into question the propriety of the Royal Court's making a finding as to whether demolition was work normally carried on by a builder when there was no relevant evidence before it and thus no factual basis upon which it could reach that conclusion. It is quite clear that the English Court of Appeal in Cambridge City Council regarded the issue as one of fact which could only be based upon evidence, of which there was none in Ferey, or upon the relevant tribunal's own expert knowledge, which seems an unlikely basis for the decision in Ferey and one not hinted at in the judgment. Given that the issue is one of fact, the question whether a particular work of demolition is or is not development can only be decided on the facts relevant to that case and not by any rule of thumb such as that laid down in the Ferey case. It is submitted that the correct course in any case of proposed demolition is to obtain the best evidence from persons engaged in the building industry as to whether a builder (not necessarily every builder practising in the locality) would undertake the work of demolition contemplated in that particular case in the normal course of his business, even though no work of construction was to follow. If the answer is no, then the demolition is not building works, though the possibility that it may constitute engineering operations should always be considered. If the answer is yes, then the demolition will be development regardless of whether construction works are to follow. Stéphanie Nicolle, QC, is Her Majesty’s Solicitor General for Jersey |