London County Council v Marks and Spencer Ltd: CA 1952

While demolition works as such did not require planning permission, works which comprised demolition, site clearance and the erection of a new building on the site were operations for which planning permission would have been required but for the exception which was available under section 78(1) of the 1947 Act. The Court distinguished between beginning ‘works for the erection of a building’ and beginning ‘the erection of a building’.
Jenkins LJ said: ‘The plaintiffs had entered into a building agreement with respect to the site, under which the plaintiffs were bound, directly or indirectly, to the Portman Estate to erect a building in accordance with certain plans and specifications approved by the Portman Estate. Further, the plaintiffs had obtained planning permission, subject to the conditions which my Lord has mentioned, for the erection of that same building. Further, with a view to carrying out the project and in accordance with their contractual obligations under the building agreement, the plaintiffs had cleared the site for the erection of the projected new building, although the supervening difficulties occasioned by rumours of war and ultimately by war itself had prevented them from carrying the project any further than that.’
He continued: ‘Returning to the phrase against that background, it is ‘works for the erection or alteration of a building.’ That phrase seems to me to be a phrase of wide import, and the inference is that it was adopted so as to cover a wide field of work. If the legislature had intended to confine the application of section 78(1) to cases where buildings had been begun but had not been completed, inevitably the section would have run: ‘Where the erection or alteration of a building has been begun ‘but not completed.’ Here we have ‘works for the erection ‘or alteration of a building,’ so as to include, in terms, operations which are not in themselves building operations. For my part I find irresistible the conclusion reached by the judge as to the meaning of these words when he said: ‘It is clear that the ‘erection of a building need not have been begun, because ‘otherwise no meaning would have been given to the words ”works for.” It is, therefore, in my view, not necessary, in order to bring a case within the subsection, that one should be able to point to some work of construction on the site and say: ‘That is part of the new building the erection of which ‘has been begun.’ It is enough if, on the facts, one can conclude that on the site in question operations have been carried out which are part of the totality of operations necessary on that site for the purpose of carrying to completion a particular building project. Where it is shown by the evidence that a building owner had in view a particular building project to be carried out on a site already built upon, and that his intention to carry out that project had never been abandoned, then work such as the demolition of the buildings already on the site, as a necessary preliminary to the carrying out of the building project, would, in my judgment, be ‘works for the erection or alteration of a ‘building’ within the meaning of the subsection. Of course, where the works are of such a nature that in themselves they might or might not be works which were being carried out for the purpose of executing some particular building project, it may well be that the onus is then on the building owner to show, and to show clearly, that his intention from the outset had been to carry some particular building project through to a finish. Obviously, where a man had started pulling down a house with no more than a general intention of erecting something else in its place, he could not come within the subsection. Indeed, the very frame of the subsection and the whole scheme of the Act would exclude such a one from the benefit of the subsection, for section 78(1) in itself contemplates, and necessarily refers only, to a case where there is a projected building or alteration in respect of which planning permission has been obtained.
In the present case, on the footing that the construction of the phrase ‘works for the erection or alteration of a building’ which I have adopted is the right construction, there is, to my mind, no doubt that in commencing and carrying out through their contractors the demolition of the existing buildings, the plaintiffs had begun works for the erection of a building. There is no doubt about their intention. There is no doubt about the identity of the projected building. Not only was it the building referred to in the planning permission obtained in 1938, but it was also the building which the plaintiffs were under contract, directly or indirectly, with the Portman Estate to erect. The judge, as appears from his judgment, might well have come to the same conclusion as I have reached but for the fact that the plaintiffs, in the events which happened, entered into a contract for the demolition of the existing buildings with a demolition specialist who did not undertake any of the work of constructing the new building; whereas, so far as the work of constructing the new building was concerned, they had dealt with that separately through a firm named Bovis Ld. and had only made provisional arrangements with them for the building work, not amounting to a firm contract. But for my part, provided it is plain that the building owner concerned did genuinely intend to erect a particular, identifiable, projected building on the site of existing buildings, it cannot matter what contractual arrangements he may have made as regards the demolition of the old buildings and the erection of the new one. That is to say, the answer cannot depend on whether he has got one contractor to pull down and rebuild or has got two contractors, one of whom is going to do the demolition and the other the construction. Here I think the projected building is well identified, if only by reference to the building agreement.’

Jenkins LJ
[1952] Ch 549
Town and Country Planning Act 1947 78(1)
England and Wales
Cited by:
CitedCeredigion County Council v National Assembly for Wales, and E D Harrison Admn 21-Sep-2001
The Council appealed a decision of the Assembly extending time for compliance with an enforcement notice from two months to two years. They believed that an error of law had occurred insofar as a 1973 permission had expired. The only works . .
CitedShimizu (UK) Ltd v Westminster City Council HL 11-Feb-1997
The removal of a listed building’s chimney stacks was an alteration allowing a claim for compensation. The phrases ‘alteration’ and ‘demolition’ are mutually exclusive. Although part of a building may be a listed building, a part of a listed . .
CitedCambridge City Council v Secretary of State for the Environment and Milton Park Investments Ltd 1992
D. wanting to develop an office block, bought neighbouring semi-detached houses hoping to provide additional car parking, enhancing the visual aspects and improving highway safety. When temporary planning consent for use of these properties as site . .
Appeal fromLondon County Council v Marks and Spencer Ltd HL 2-Jan-1953
the words ‘works for the erection’ of a building’ in section 78 (1) of the Town and Country Planning Act, 1947, meant, in relation to the case, the totality of the works on the site necessary to carry out the building project authorized in 1938, . .

Lists of cited by and citing cases may be incomplete.


Updated: 09 November 2021; Ref: scu.180121