“Rebuild the building located in the position outlined in blue on the plan attached to this notice so as to recreate it as similar as possible to the demolished building as it stood prior to the start of demolition on5 August 2023 , to include the original pub building and later additions to the rear extension and toilet block. For the avoidance of doubt, such restoration shall include, but not be limited to, steps 1 and 2 as set out below.”
“As to the court case – [I interpolate that is a reference to the then current police investigation into the causes of the fire] – no charging decision has been made, but they hope to know by September. The Council helpfully explained their view that the identity of the fire starter or even if it was deliberate or not was of little relevance to the enforcement appeal. Their view was that a fire took place followed by demolition of the remains. The issue is whether the fire can be considered to be part of the demolition, not who started it. Particularly as the appellants are not relying on permitted development rights for demolition in the first place. The appellants reserved their position on these matters. It is the Inspectorate’s position that any further delay to the Inquiry would not be welcome. But if there was a request for a delay this would be considered on its merits.”
“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.”
“On10 December 2024 the Inspector indicated his reluctance to put the inquiry “into abeyance” and noted that “the sensible recourse would be for the Council to withdraw the notice, relying on the second bite procedure”
“5. The Appellant’s case is that the destruction of the buildings by fire does not constitute a breach of planning control. The Appellant was not responsible for the fire. It matters not whether the fire was wholly accidental (eg. an electrical fire) or partially accidental (eg. a fire started by a third party which got out of control). Either way, it does not constitute the “carrying out” of demolition. 6. Further and in any event, the Appellant’s case is that if the building was deliberately destroyed by fire by a malicious third party, the appeal should be allowed on Ground (a). It would not be proportionate to require a wholly innocent victim of arson to incur the multi-million pound cost of restoring the Crooked House when it is uneconomic to do so.”
“21. The Appellant respectfully submits that the decisions in Save Britain’s Heritage are wholly irrelevant to the Crooked House appeal. For the reasons set out, it is important in the present case to consider the cause of the fire which substantially destroyed the property. The issue of the post-fire works is largely academic, because the objective of the Enforcement Notice is to return the Crooked House to its pre-fire condition. 22. The Appellant therefore maintains its case that the cause of the fire is central to the appeal, and a postponement is necessary both to ensure fairness to the parties in the present appeal and to avoid a substantial risk of injustice to any defendant who may be the subject of a criminal prosecution.”
“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) and (c) 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) 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.”
“In ordinary circumstances, delay in the determination of the planning enforcement appeal would be contrary to the public interest. However, these are not ordinary circumstances. Concerns about potential adverse public reaction cannot be allowed to undermine the fair determination of the issues on the appeal. It is not appropriate to adopt a convoluted procedure to determine the appeal in order to make up for the fact that potentially decisive evidence is not currently available to the parties and therefore to the Inquiry.”
“13. The Appellant’s case is that it is necessary to establish the cause of the fire in order to determine grounds (a) and (g). 14. The LPA’s case is that the enforcement regime is engaged if Scenario (2) or (3) applies (i.e. if this was destruction by a third party) because the identity of the person who carries out the demolition is not relevant to the application of the statute. This is a contentious argument, at least in so far as Scenario (2) is concerned. However, it is the Appellant’s case in any event that the identity of the person responsible for the fire would then become a relevant factor for the purposes of ground (a). If the Appellant is the innocent victim of a malicious arson attack, it would be a disproportionate interference with its economic rights to require it to spend millions of pounds rebuilding the Crooked House. The appeal should be allowed under ground (a) to avoid injustice of that result.”
“In any event, in the context of the present case it is simply irrational to determine ground (a) as a preliminary issue. The Appellant’s case is that it is the innocent victim of either an accident or the actions of a third party. It is wholly irrational to determine the hypothetical question of whether it ought to be granted retrospective permission for the demolition of the Crooked House without first resolving the question of whether it in fact did so. Further, given the requirement for expert evidence to determine ground (a), the cost to the parties even of a “truncated” planning inquiry will significantly exceed£100,000 . For example, the estimated costs of the groundwork investigations alone is in excess of£40,000 . It would also involve a considerable public investment in hearing time for the inquiry.”
“Following my note “Response to Request for Postponement of Inquiry”, I have carefully considered the replies from both parties. This note is to confirm the Inquiry will go ahead as scheduled on11 March 2025 for 4-6 sitting days, 11-14 and 18-19 March if necessary. Although the appellant was not in favour of my suggested approach the Council welcomed it as “pragmatic” which is its intention. The primary purpose of the Inquiry will be to hear evidence on ground (a) and ground (g). The evidence for grounds (b), (c) and (f) will be taken as written submissions. Once all the oral evidence has been heard the Inquiry will be adjourned. The parties will be given the opportunity to make submissions on the available options of how I might proceed and when in respect of the legal grounds of appeal. It is my intention that neither party will be prejudiced by the process and certainly there will be no prejudging of any legal issues surrounding the fire. The objective is to enable the appeal process to proceed without unnecessary delay. The remaining timetable is therefore, 11 February for submission of proofs to the Inquiry and written submissions on grounds (b), (c) and (f). Proofs should cover grounds (a) and (g) on the basis outlined in my previous note dated 9 January and written submissions should, in particular, cover the three points from that note.”
“9(1) The date fixed by the Secretary of State for the holding of an inquiry shall be— (a) not later than 20 weeks after the starting date unless he considers such a date impracticable; or (b) the earliest date after that period which he considers to be practicable.”
“The Secretary of State may vary the date fixed for the holding of an inquiry, whether or not the date as varied is within the period of 20 weeks mentioned in paragraph (1); and paragraph (2) shall apply to a variation of a date as it applied to the date originally fixed.”
“17(1) Except as otherwise provided in these Rules, the inspector shall determine the procedure at an inquiry. (2) At the start of the inquiry the inspector shall identify what are, in his opinion, the main issues to be considered at the inquiry and any matters on which he requires further explanation from the persons entitled or permitted to appear. (3) Nothing in paragraph (2) shall preclude any person entitled or permitted to appear from referring to issues which they consider relevant to the consideration of the appeal but which were not issues identified by the inspector pursuant to that paragraph… (6) The inspector may refuse to permit the— (a) giving or production of evidence; (b) cross-examination of persons giving evidence; or (c) presentation of any matter, which he considers to be irrelevant or repetitious; but where he refuses to permit the giving of oral evidence, the person wishing to give the evidence may submit to him any evidence or other matter in writing before the close of the inquiry.”
“(1) Where the Secretary of State gives a decision in proceedings on an appeal under…Part VII against an enforcement notice the appellant or the local planning authority or any other person having an interest in the land to which the notice relates may, according as rules of court may provide, either appeal to the High Court against the decision on a point of law or require the Secretary of State to state and sign a case for the opinion of the High Court.”
“In this section ‘decision’ includes a direction or order, and references to the giving of a decision shall be construed accordingly.”
“…the test is one of fairness, but the court should only intervene where it is satisfied that the decision was wrong in principle or demonstrably and clearly unfair.”
“The appeal on Ground (a) arises if (but only if) the building was deliberately destroyed by fire by some person. The LPA is right that the strict language of the TCPA does not draw any distinction as to the identity of the ‘developer’, but it is an outrageous suggestion that the Claimant should have to meet the vast cost of recreating The Crooked House for the benefit of the public if it is the innocent victim of a malicious arson attack.”
“The inspector has not decided that the cause of the fire is irrelevant to the ground (a) appeal. He has not determined the point at all. He has, as above, explicitly identified three questions that it is necessary to consider in order to determine it in the future. He has at this stage merely indicated that the appeal may be capable of determination without considering the cause. The manner in which that might be so is identified [by reference to the three questions that the inspector posed in his note of9 January 2025 ]. There is no conceivable misdirection. This ground is premature.”
“It is right that initially the Council did support the Claimant’s application for a postponement (as noted through the SFG). The reasoning for this was, while it formed no part of the Council’s case, it was recognised that the circumstances of the fire did form part of the Claimant’s case. While we fundamentally disagree with the Claimant’s arguments, the Council has always recognised the Claimant’s right to run them. Furthermore, the Council accepted (and continues to accept) that if the Public Inquiry were to have to hear evidence to determine the exact circumstances of the fire, then this would be prejudicial to the Claimant at this current time.”