Last week, the destruction of a much loved 18^th century pub near Dudley in the West Midlands hit the headlines. "Britain's wonkiest pub", Crooked House, was gutted by fire Saturday 5^th August. Fire services confirmed that entrances to the property had been blocked by mounds of earth. Following the fire, the shell was left standing, however this was razed to the ground entirely by the Monday. The previous landlord described the pub as having been a community focal point. "People need to know the truth of what's gone on," he said.

This all unfolded just a week after the pub was sold by the brewer Marston’s to the new owner, ATE Farms. The buyer is a property firm which we understand just happens to run the 37-acre quarry and landfill site located adjacent to the pub. Staffordshire police confirmed that an investigation into the cause of the fire was started prior to demolition. On Wednesday, the Police confirmed that they were treating the fire as arson. Construction News are reporting the 14-tonne excavator used to bulldoze the building was brought on site a week before the fire.

Is there a planning breach?

The first thing to acknowledge is that the fire is potentially a criminal, rather than a planning issue, however the question is whether the subsequent demolition is a breach of planning law.

Last Tuesday South Staffordshire Council spoke to a representative of the landowner after the fire, but prior to the demolition:

“The agreed course of action included the removal of three elements of the first-floor front elevation only. This was only to avoid the weak parts of the structure from falling,” said Roger Lees, of the Council.

“At no point did the council agree the demolition of the whole structure, nor was this deemed necessary. This council finds the manner in which the situation was managed following the fire completely unacceptable and contrary to instructions provided by our officers.”

But were the council able to make such a demand? Well, generally, the General Permitted Development Order does allow for demolition of fire damaged buildings without prior permission, for health and safety reasons. However, Under the Town and Country Planning (General Permitted Development) (England) (Amendment) (No 2) Order 2017, pubs in England cannot be converted or demolished without planning permission. Therefore, the new owners required consent for the demolition, due to this very specific carve-out.

We should note for completeness that were the building either listed or in a conservation area, then there would have been a breach regardless of the GPDO.

The case for a “brick by brick” rebuild

On Friday, the West Midlands mayor, Andy Street, called for the Crooked House to be rebuilt “brick by brick”, meanwhile the Campaign for Real Ale (CAMRA) has urged the government to require the same treatment for 31 illegally converted or demolished pubs in just the last six months.

A breach of planning is not automatically a criminal offence, however failure to adhere to an enforcement notice is. Where there is a planning breach, one would anticipate that the council would seek to raise an enforcement notice, demanding a remedy of the breach.

The remedies in this particular situation are understandably pretty limited; however s.173 of the TCPA 1990 outlines that “Where an enforcement notice is issued in respect of a breach of planning control consisting of demolition of a building, the notice may require the construction of a building… as similar as possible to the demolished building”.

There is certainly precedent for this, the Carlton Tavern in Maida Vale, London, recently re-opened after being illegally razed by a developer. Westminster City Council’s enforcement notice had demanded that the owner rebuild it “in facsimile”.

If any reinstatement was not completed within the time frame specified in the enforcement notice, then the new owners shall have committed a criminal offence, and be liable to summary conviction, or on conviction on indictment, to a fine. Any fine would have regard to the financial benefit accrued as a consequence of the offence, thus ensuring that those committing criminal offences are not able to profit from them.