Listed building — Repairs notice — Compulsory purchase — Repairs notice specifying works of preservation and works of restoration — Whether repairs notice satisfied condition precedent for compulsory purchase — Proper content of repairs notice — Whether repairs notice including works beyond preservation valid — Building-owner’s appeal dismissed
Willesborough
Windmill, Ashford, Kent, was erected in 1868, and in 1951 it was listed as a
building of special architectural or historic interest. The appellant acquired
it in 1969 and converted it into a dwellinghouse. The condition of the windmill
deteriorated, and in October 1983 the second respondents, the Ashford Borough
Council, served a repairs notice on the appellant pursuant to section 115 of
the Town and Country Planning Act 1971. The repairs notice specified 20 items
of work that the second respondents considered were, in the terms of section
115, ‘reasonably necessary for the proper preservation of the building’. Some
of the items were works of an emergency nature or were repairs to prevent
further deterioration of the structure; other items, such as the reconstruction
of the catwalk and fantail and work to the sweeps, were later accepted as being
works of restoration rather than preservation, as some parts of the structure
were missing from the building when it was listed in 1951 and were also missing
at the date of the repairs notice in 1983.
Following the
failure of the appellant to comply with the repairs notice, the second
respondents made a compulsory purchase order, under section 114 of the 1971
Act, in respect of the windmill. The appellant objected to the draft order and,
following a public local inquiry and the recommendations of his inspector, in
December 1986 the first respondent, the Secretary of State for the Environment,
confirmed the order, as he concluded that a repairs notice specifying works
that were not ‘preservation’ was not invalid and he was not satisfied that the
appellant had taken reasonable steps for preserving the building. The appellant
challenged the confirmation of that order by the first respondent on the ground
that the repairs notice, the necessary condition precedent to the exercise of
compulsory purchase, was invalid as it did not satisfy the requirements of
section 115 of the 1971 Act. The decision of Mr Malcolm Pill QC (sitting as a
deputy High Court judge) to dismiss the appellant’s application to quash the
decision of the first respondent to confirm the order was affirmed by the Court
of Appeal ([1988] 2 EGLR 205). It was contended on behalf of the appellant that
a repairs notice, a condition precedent of compulsory purchase, may only
specify works for ‘proper preservation’ of a listed building, that a line must
be drawn between preservation and restoration and that, on the true
construction of sections 114 and 115, works cannot be considered necessary for
the proper preservation of a listed building which are not directed to the
preservation of the building as it subsists as the date when the repairs notice
is served.
The word
‘preservation’ has to be given its ordinary meaning in contrast to
‘restoration’; this imposes an objective limitation which must be applied in
considering the works specified in the notice: see p 71C.
The date of
the listing of the building, and not the date of the repairs notice, is the
relevant date for determining whether works are those of repair or restoration:
see p 72F.
Where a
repairs notice contains items of work that are not within the scope of
‘preservation’, it remains a valid notice notwithstanding that it also includes
invalid items. Provided that the list of valid items is sufficiently
substantial to support a conclusion by the Secretary of State, in the event
that the specified works are not carried out, that reasonable steps are not
being taken for properly preserving the building, the invalid items may simply
be disregarded: see p 73. The owner’s remedy is to challenge a notice
containing excessive items in the magistrates’ court under section 114(6) of the
1971 Act either because they are bad in law or in fact: see p 74B.
referred to in the opinions
Appeal against
a decision of the Court of Appeal
This was an
appeal against a decision of the Court of Appeal ([1988] 2 EGLR 205) dismissing
an appeal against the refusal by Mr Malcolm Pill QC (sitting as a deputy High
Court judge) (November 13 1987) of an application by the appellant under
section 23 of the Acquisition of Land Act 1981 to challenge the decision of the
first respondent, the Secretary of State for the Environment, who had confirmed
a compulsory purchase order made by the second respondents, the Ashford Borough
Council.
Barnes QC and Richard Hayward (instructed by Edwin Coe & Calder Woods, for
Roderick O’Driscoll & Partners, of Maidstone) appeared for the appellants.
Sullivan QC and Mark Low (instructed by the Treasury Solicitor and by Sharpe
Pritchard for the solicitor to the Ashford Borough Council) appeared for the
first and second respondents.
following opinions were delivered.
LORD BRIDGE
OF HARWICH: My Lords, The appellant challenges a
compulsory purchase order made by the Ashford Borough Council on October 15
1984 and confirmed by the Secretary of State for the Environment on December 16
1986 which authorises the council to acquire compulsorily the Willesborough
Windmill. The authorisation was given pursuant to section 114 of the Town and
Country Planning Act 1971 on the ground that it appeared to the Secretary of
State that ‘reasonable steps are not being taken for properly preserving’ the
windmill, which is a listed building. It is a condition precedent to a
compulsory acquisition under section 114 that at least two months before
initiating the compulsory purchase proceedings the acquiring authority should serve
on the owner of the building a notice under section 115 ‘specifying the works
which they consider reasonably necessary for the proper preservation of the
building’. The notice is referred to in the section as a ‘repairs notice’.
The ground of
the appellant’s challenge is that the repairs notice which was served on him by
the council on October 7 1983 did not satisfy the condition precedent in that
some of the works specified as considered by the council to be reasonably
necessary for the proper preservation of the windmill were incapable, on the
true construction of section 115, of being so considered and that the inclusion
of these excessive items invalidated the notice.
The challenge
thus raises two distinct questions of statutory construction. First, what, in
the context of sections 114 and 115, is the scope of the ‘proper preservation’
of a listed building which the works specified in a repairs notice under
section 115 may be directed to achieve?
Second, if the notice specifies some works falling within that scope but
also others which exceed it, is the
notice ineffective for that purpose?
The appellant
applied to the High Court pursuant to section 23 of the Acquisition of Land Act
1981 for the quashing of the compulsory purchase order. The application was
dismissed by Mr Malcolm Pill QC, sitting as a deputy judge of the Queen’s Bench
Division. His decision was affirmed by the Court of Appeal (Slade, Glidewell
and Russell LJJ): [see [1988] 2 EGLR 205]. The appellant now appeals by leave
of your Lordships’ House.
For the
purpose of deciding the appeal the relevant facts may be quite shortly stated.
The windmill was built in 1868. It continued in operation as a windmill until
1938. In September 1951 it was included in a list of buildings of special
architectural or historic interest pursuant to section 30(1) of the Town and
Country Planning Act 1947. The notes entered in the list descriptive of the
building read as follows:
Built in 1868
by John Hill of Ashford, mill-wright. Rect. brick base of 2 s. Above this an
octagonal smock mill of white weather-boarding with a platform and railing
round above the base. Sash ws. with gl. bars intact. Hooded cap. Fantail and
sweeps partly missing. The windmill is still worked as a mill but not by wind.
Unusually good condition.
In 1969 the
windmill was acquired by the appellant and converted to a dwellinghouse. Over
the years the condition of the windmill deteriorated greatly. In particular, by
the time the council served the repairs notice in October 1983 the platform and
railing round the base of the mill (‘the catwalk’) had mostly decayed or been
removed, parts of the fantail had been removed and what remained was in danger
of collapse, and very little was left of the sweeps.
The repairs
notice served under section 115 specified 20 items of work which the council
considered reasonably necessary for the proper preservation of the building. It
is now accepted that 14 of those items, those numbered 1-12, 14 and 18 in the
list, specified either works of an emergency nature (dismantling the dangerous
remains of the fantail) or works in the nature of repairs required to prevent
further deterioration of the structure or of parts of the windmill which were
subsisting at the date of service of the notice. The remaining items, however,
went beyond this. They included, inter alia, the complete reconstruction
of the catwalk and the fantail and the renewal of the stocks and whips (but not
the framework or shutters) of the sweeps. The work specified for the catwalk
and the sweeps was to be ‘to the original standard or to a standard approved by
the council’. I shall for convenience refer to items 13, 15, 16, 17, 19 and 20
collectively as ‘the restoration items’.
When the
compulsory purchase order was made, the appellant duly objected to its
confirmation and a public inquiry was held in December 1985 by an inspector
appointed by the Secretary of State. In a lengthy report, dated January 10
1986, the inspector records the submissions made to him and sets out his
findings of fact. Objection was taken on behalf of the appellant that the
inclusion in the repairs notice of the restoration items was unlawful. Since
service of the repairs notice, the ruinous remains of the fantail have been
dismantled, but apart from that it is clear that very little work had been done
in response to the notice. The inspector found that:
the steps
taken can in my opinion only be described as preliminaries for the eventual
preservation of the building rather than as substantial works for its proper
preservation.
The inspector
concluded:
that no
reasonable steps are being taken for properly preserving the building
and that it is expedient to make provision for its preservation and to
authorise compulsory acquisition for that purpose.
The crucial
paragraphs of the Secretary of State’s decision letter, dated December 16 1986,
read, so far as presently material, as follows:
5. Careful
consideration has been given to the legal points set out by the inspector at
paragraphs 27 to 44 of his report and his opinion at paragraph 45 that they are
for the Secretary of State to decide. Representations were made to the effect
that: (i) some of the works included in the repairs notice were appropriate to
the restoration of the building rather than to its preservation. The Secretary
of State takes the view that the question whether works are properly considered
to be reasonably necessary for the proper preservation of a building is bound,
to a certain extent, to be one of fact and degree. He agrees with the
inspector’s view that in certain instances works which might normally be
considered more appropriate to restoration can, in other circumstances, be
regarded as necessary for the proper preservation of a building. In the
Secretary of State’s view, the repairs required to preserve the building
contained in the council’s repairs notice do not include such items as would
invalidate the notice although the Secretary of State accepts that had all, or
most, or even a substantial amount of the works required by items 1-12, 14 and
18 of the schedule to the notice been carried out, he would have been satisfied
that reasonable steps were being taken for properly preserving the building; .
. .
6. The
Secretary of State, having considered the legal points raised on behalf of the
owners of the mill, considers that there is no legal impediment to prevent him
from reaching a decision on the compulsory purchase order on the merits of the
case.
7. The
inspector’s findings of fact and conclusions have been carefully considered.
The inspector’s conclusion that the building is a particularly important one
which warrants every effort being made to preserve it is accepted, as is also
his conclusion that no reasonable steps are being taken for properly preserving
it. . .
9. The
Secretary of State accepts the inspector’s findings of fact and his recommendation
and he is satisfied that it is expedient to make provision for the preservation
of the building and to authorise its compulsory purchase for that purpose. He
has accordingly decided to confirm the order without modification.
Before
examining the rival submissions of the parties it is essential to consider the
general scheme of the Act of 1971 in relation to the preservation of buildings
of special architectural or historic interest. Lists of such buildings are
compiled or approved by the Secretary of State under section 54(1). Section
54(2) provides:
In considering
whether to include a building in a list compiled or approved under this
section, the Secretary of State may take into account not only the building
itself but also —
. . .
(b) the desirability of preserving, on the
ground of its architectural or historic interest, any feature of the building
consisting of a man-made object or structure fixed to the building or forming
part of the land and comprised within the curtilage of the building.
As soon as may
be after listing the local authority are notified and they in turn notify the
owner of the building. A copy of the entry in the list is registered as a local
land charge. Thus every subsequent owner will acquire with knowledge that the
building is listed. Once a building has been listed under section 54, section
55 makes it a criminal offence to demolish the building or to alter or extend
it in any manner which would affect its character as a building of special
architectural or historic interest, unless permission, referred to in the Act
as ‘listed building consent’, has been granted by the local planning
authority or the Secretary of State. The owner of a listed building is not
consulted and has no right of objection before the building is listed. However,
if he applies for listed building consent and it is not granted by the local
planning authority, he has, on appeal to the Secretary of State, a full
opportunity to canvass the merits of the listing and it is at that stage that
the Secretary of State will have to reach a decision for or against the merits
of preserving the building. If listed building consent is refused or granted
subject to conditions, compensation is, in appropriate circumstances, payable
to the owner pursuant to section 171.
The machinery,
the Act provides to secure the preservation of a listed building, may be
considered under three headings: first, sanctions for unlawful demolition or
alteration; second, provision for preservation work to be undertaken by the
local authority or the Secretary of State; third, provision for compulsory
acquisition when reasonable steps are not being taken by the owner for properly
preserving the building.
The offence
created by section 55(1) is punishable by a fine or imprisonment. In addition, when
works have been carried out in contravention of section 55(1), sections 96 to
100 of the Act provide an elaborate procedure initiated by the service of a
listed building enforcement notice, analogous to the enforcement notice
procedure applicable to ordinary breaches of planning control, to secure the
restoration of the listed building. In particular, by section 96(1)(b)(i)
(as substituted by the Local Government and Planning (Amendment) Act 1981,
section 1 and Schedule, para 9), a listed building enforcement notice may
require such steps as may be specified to be taken ‘for restoring the building
to its former state’. One of the grounds of appeal available against such a
notice under section 97(1)(g) (as substituted) is that ‘the requirements
of the notice exceed what is necessary for restoring the building to its
condition before the works were carried out’. Non-compliance with a valid
listed building enforcement notice attracts further criminal penalties under
section 98 and the ultimate sanction to secure restoration of the listed
building is provided by section 99 which allows the local planning authority to
take the steps required to be taken by the enforcement notice and to recover
the expenses of so doing from the owner.
Subject to
certain limitations, section 101 provides that when it appears to the local
authority or the Secretary of State that works are urgently necessary for the
preservation of a listed building they may execute the works. Since April 1
1987 the significance of this provision, as an encouragement to the owner of a
listed building to keep it in proper repair, has been strengthened by the
addition of section 101A, introduced by the Housing and Planning Act 1986
(section 40 and Schedule 9, Part I, para 7), which enables the expenses of
works executed under section 101 to be recovered from the owner. I mention this
as a recent enhancement of the statutory machinery for the preservation of
listed buildings, but I recognise, of course, that it cannot affect the
construction of sections 114 and 115.
Turning now to
the machinery for compulsory acquisition, I first set out so much of sections
114 and 115 (as amended) as seems to me material as follows:
114.–(1) Where it appears to the
Secretary of State, in the case of a building to which this section applies,
that reasonable steps are not being taken for properly preserving it, the
Secretary of State may authorise the council of the county or county district
in which the building is situated . . . to acquire compulsorily under this section
the building and any land comprising or contiguous or adjacent to it which
appears to the Secretary of State to be required for preserving the building or
its amenities, or for affording access to it, or for its proper control or
management.
. . .
(3) This section applies to any listed building.
. . .
(4) The Secretary of State shall not make or
confirm a compulsory purchase order for the acquisition of any building by
virtue of this section unless he is satisfied that it is expedient to make
provision for the preservation of the building and to authorise its compulsory
acquisition for that purpose.
(5) The Acquisition of Land Act 1981 shall apply
to the compulsory acquisition of land under this section.
(6) Any person having an interest in a building
which it is proposed to acquire compulsorily under this section may, within 28
days after the service of the notice required by section 12 of the Acquisition
of Land Act 1981, apply to a magistrates’ court acting for the petty sessions
area within which the building is situated for an order staying further
proceedings on the compulsory purchase order; and, if the court is satisfied
that reasonable steps have been taken for properly preserving the building, the
court shall make an order accordingly.
(7) Any person aggrieved by the decision of a
magistrates’ court on an application under subsection (6) of this section may
appeal against the decision to the Crown Court.
115.–(1) The compulsory purchase
of a building under section 114 of this Act shall not be started by a council .
. . unless at least two months previously they have served on the owner of the
building, and not withdrawn, a notice under this section (in this section
referred to as a ‘repairs notice’) —
(a) specifying the works which they consider
reasonably necessary for the proper preservation of the building; and
(b) explaining the effect of sections 114 and
117 of this Act.
. . .
(4) For the purposes of this section a compulsory
acquisition is started when the council . . . serve the notice required by
section 12 of the Acquisition of Land Act 1981.
Section 116
provides that the measure of compensation on compulsory acquisition of a listed
building, unless compensation has already become payable under section 171 upon
refusal of listed building consent or grant of such consent subject to
conditions, shall be assessed on the assumption that listed building consent
for demolition, alteration or extension of the building would be granted. This
ensures that the open market value upon which compensation is assessed is not
to be depreciated by the restriction inherent in the listing. Section 117
provides for a reduced level of compensation in a case where the building has
been deliberately allowed to fall into disrepair for the purpose of justifying
its demolition. It is not suggested that this is such a case.
Mr Michael
Barnes QC, who has presented the case for the appellant with conspicuous skill
and cogency, submits that a line must be drawn between preservation and
restoration and that, on the true construction of sections 114 and 115, works
cannot be considered necessary for the proper preservation of a listed building
which are not directed to the preservation of the building as it subsists as at
the date when the repairs notice is served. He accepts, of course, that the
concept of preservation in these sections cannot be limited to keeping the
building in the exact condition in which it is when the notice is served, since
this would frustrate the whole procedure. But he submits that no more can ever
be considered necessary for preservation than such repairs as are required to
secure whatever remains of the building from further deterioration. Thus, for
example, if part of the roof is missing or a wall has become unstable, it is
accepted that works to repair the roof or stabilise the wall would properly be
directed to preservation of the building. But, on the other hand, if some
distinct part of the building, some decorative feature of the building without
structural significance or some free-standing object included in the listing
under section 54(2)(b) has been accidentally destroyed, works to repair
or replace those items would exceed the ambit of preservation and could not
properly be included in a repairs notice. This construction, Mr Barnes submits,
accords with the ordinary meaning of the word ‘preservation’ in contrast with
the word ‘restoration’ found in the provisions relating to the enforcement
notice procedure in sections 96 and 97. On the basis of this construction the
restoration items specified in the repairs notice in this case were beyond the
scope of section 115.
Mr Jeremy
Sullivan QC, for the respondents, submits that the phrase ‘reasonably necessary
for the proper preservation of the building’ must be construed as a whole and
establishes the criterion to be applied by the acquiring authority, when they
serve the repairs notice, and the Secretary of State, when deciding whether to
confirm the compulsory purchase order in the circumstances of any particular
case, which is partly a matter of fact and degree and partly a matter of
discretion. Their decisions in the application of that criterion, he submits,
are only susceptible of review by the courts on the ground of irrationality. I
readily accept, as did Mr Barnes in argument, that the use of the words
‘reasonably’ and ‘proper’ in the phrase under consideration call for value
judgments, weighing such matters as the cost and the benefit of works required
for the preservation of a listed building, and that such judgments are entrusted
to the acquiring authority under section 115 and to the Secretary of State
under section 114. But I think that the word ‘preservation’ has to be given its
ordinary meaning in contrast with ‘restoration’ and that this does impose an
objective limitation which must be applied in considering what the works
specified in a repairs notice may be directed to achieve.
The more
difficult question is whether ‘preservation’ of the listed building in these
sections refers to the preservation of the building as it was when listed or of
the building as it is when the repairs notice is served. I think the language
of the sections is capable of either construction. Indeed, both counsel adopted
the proposition that the sections refer to preservation of the building as it
subsisted at the date of listing as an alternative to their primary
submissions, albeit with very different emphasis. Mr Barnes’ bottom line, if I
may use that colloquialism, is that the preservation envisaged by sections 114
and 115 must at least exclude the restoration of features of a building which
ceased to exist before the building was listed. Mr Sullivan’s bottom line is
that it must at least include anything designed to preserve the building as it
subsisted when first listed and that this would include, in the case of a
building in disrepair at the time of listing, works designed to remedy the
disrepair and secure the building against further deterioration.
I accept that
the legislature cannot have intended that immediately following the listing of a
building it should be liable to compulsory purchase on the ground that steps
were not being taken for properly preserving it because the owner was unwilling
to restore features of the building which had ceased to exist before listing. I
accept, on the other hand, that if what I will call the date of listing
construction is to be preferred to the date of notice construction, a building
in disrepair when listed may be the subject of a repairs notice under section
114 specifying works necessary to prevent further deterioration. The line
between repair and restoration may not be an easy one to draw with precision,
but in practice I doubt if any great difficulty will be found in saying whether
any particular works fall on one side of the line or the other. The important
issue is whether the date of listing or the date of notice construction is
correct.
Mr Barnes
naturally places much emphasis on the specific references to restoration which
can be required to be undertaken by or at the expense of the owner under the
listed building enforcement notice procedure in sections 96 to 100. He also
contends, I think rightly, that the works urgently necessary for
authority or the Secretary of State under section 101, and the expenses of
which since April 1 1987 may be recovered from the owner under section 101A,
can only refer to works urgently necessary to preserve the building as it
subsists when the works are undertaken. These indications, he submits, point
strongly in favour of the date of notice construction. I am conscious of the
force of Mr Barnes’ submission but I cannot accept that the considerations on
which he relies are decisive. An enforcement notice under section 96 is both
penal and coercive; it compels the owner to restore the building or to bear the
cost of restoration. A repairs notice is in no way either penal or coercive; it
is a procedural preliminary to compulsory acquisition designed to give the
owner the opportunity, if he chooses, to undertake the works reasonably
necessary for the proper preservation of the building as an alternative to
selling it at its market value to the acquiring authority. Again, it is clear
that works can only be urgently necessary for the preservation of a building,
so as to justify works being undertaken pursuant to section 101, if they are
necessary for the preservation of the building as it subsists when the works
are carried out. Thus there is no ambiguity in section 101. I do not think it
follows that the proper preservation of a listed building, which is the
objective of the compulsory acquisition procedure under sections 114 and 115,
is limited in the same way.
I believe that
the question, whether the date of listing or the date of notice construction is
correct, is to be resolved purposively by considering the underlying policy of
the legislation. The public interest in the preservation of buildings of
special architectural or historic interest needs no emphasis. Once a building
has been listed, that public interest has been declared. If the owner seeks and
is denied unconditional listed building consent he will recover any
compensation payable under section 171. If a listed building falls into
disrepair and that disrepair becomes apparent before the building or part of it
collapses, the character of the building can be preserved, if necessary, by
emergency works under section 101. But if part of a building collapses without
warning or is destroyed by fire or storm damage, the character of the building
as a building of special architectural or historic interest can be preserved
only if the damage is made good. If the date of notice construction is correct,
the compulsory purchase machinery is ineffective to serve the public interest
in such cases and sections 114 and 115 are of very limited utility. On the
other hand, if the date of listing construction is correct, compulsory purchase
is available in such cases as the only means, if the owner is unwilling to make
good the damage, of preserving the character of the building from which its
special architectural or historic interest derives. I have no hesitation in
concluding that the date of listing construction is to be preferred. Sections
114 and 115, given this more generous construction, do no more than enable the
building as listed to be acquired and preserved at the public expense. The
interest of the owner, if he is unwilling to undertake the necessary works, in
retaining his property has to yield to the public interest in the same way and
on the same terms as the interest of any other property owner whose property is
acquired for some necessary public purpose.
I have felt it
appropriate to examine this issue of construction at some length, since it was
fully argued and is of obvious importance. At the end of the day, however, I do
not think the result of the appeal turns on it. I accept Mr Barnes’ submission
that even on the date of listing construction the repairs notice served by the
council specified works exceeding what could be considered reasonably necessary
for the proper preservation of the windmill. The notes entered in the list in
1951 recorded that the fantail and sweeps were then partly missing. The
restoration items in the repairs notice specified works for the full
restoration of the fantail and partial restoration of the sweeps. The
former clearly are, and the latter, in the absence of evidence as to which
parts of the sweeps were missing in 1951, must be taken to be, works for the
restoration of the building to the condition that it was in before it was
listed.
The Secretary
of State, however, clearly did not rely on the fact that none of the works
specified in relation to the restoration items had been carried out in reaching
his conclusion that reasonable steps were not being taken for preserving the
windmill. There was ample material on which he could reach that conclusion in
reliance on the failure to carry out works specified as reasonably necessary
for the preservation of the windmill in relation to the other 14 items listed
in the repairs notice. His confirmation of the compulsory purchase order,
therefore, was perfectly lawful under section 114 unless, as Mr Barnes
contends, the inclusion in the repairs notice of the restoration items relating
to the fantail and the sweeps invalidated the remainder of the notice so that
the condition precedent to compulsory purchase under section 115 was not
satisfied.
Before turning
to that issue, I should observe that the statutory code relating to the
preservation of listed buildings, on which I have based the opinion expressed
as to the proper construction of sections 114 and 115, is the consolidating Act
of 1971. A large part of that code, including the provisions now found in
sections 114 and 115, was first enacted by the Town and Country Planning Act
1968 amending the original code under the Town and Country Planning Act 1947. I
leave open for future consideration, if the question should ever arise, whether
works specified for the restoration of some feature of a building first listed
under section 30 of the Act of 1947 which had disappeared before the Act of
1968 came into force could properly be regarded as necessary for the
preservation of the listed building within the meaning of sections 114 and 115.
The point does not arise here and no argument was addressed to it. It is very
unlikely, I would think, to arise in the future and I express no opinion on it.
The remaining
and crucial question on which the appeal depends is whether a repairs notice
which specifies a list of works considered reasonably necessary for the proper
preservation of a listed building which includes a number of items within the
scope of the section (‘valid items’) and also a number of items within the
scope of the section (‘invalid items’) effectively satisfies the condition
precedent to compulsory purchase imposed by section 115. This is a pure
question of the construction of the section and I do not think that any
assistance is to be derived from authorities on severance in very different
legal contexts. On the face of the language of section 115 a notice listing a
number of valid items is a notice ‘specifying the works which they consider
reasonably necessary for the proper preservation of the building’
notwithstanding that it also includes invalid items. Provided that the list of
valid items is sufficiently substantial to support a conclusion by the
Secretary of State, in the event that the specified works are not carried out,
that reasonable steps are not being taken for properly preserving the building,
it is difficult to see why the invalid items should not simply be disregarded.
Mr Barnes submits, however, that the purpose of a repairs notice is to give the
owner of a listed building the opportunity to avoid compulsory purchase by
undertaking the works which are reasonably necessary for the proper
preservation of the building and that a notice which is excessive puts him in a
dilemma; he does not know whether to carry out all the specified works or to
omit those works which he considers to be excessive at the risk of having his
property acquired if he is held to have been wrong. Such a dilemma may arise
whenever the owner of a listed building wishes to challenge any items of works
specified in the repairs notice as excessive. The ground of a challenge may be
that the disputed items are excessive in fact, ie that valid items exceed what
is in fact reasonably necessary
items are excessive in law, ie that they are invalid items. Mr Barnes rightly
concedes that a notice containing valid items which are excessive in fact
satisfies the condition precedent to compulsory purchase imposed by section
115. It is otherwise, he submits, if invalid items are included because the
acquiring authority, in serving the notice, has erred in law.
The dilemma of
the owner is the same whether he wishes to challenge certain items in the
repairs notice as being excessive in fact or excessive in law. It seems to me
that recourse to the magistrates’ court under section 114(6) is tailor-made to
provide a solution to the dilemma in either case. This unusual provision
empowers the magistrates’ court to override the opinion of the acquiring
authority and to pre-empt the decision of the Secretary of State in determining
what works are reasonably necessary for the proper preservation of the listed
building.
The procedure
will operate in the following way. The owner, who wishes to retain his property
in the listed building, will put in hand the works specified in the repairs
notice which he admits to be necessary for its proper preservation, but not the
works specified in the items listed which he wishes to dispute. On receipt of
notice under section 12 of the Act of 1981 initiating the compulsory purchase
proceedings, he will then apply to the magistrates’ court under section
114 for an order staying those
proceedings. If the magistrates’ court is satisfied that he has taken
reasonable steps for properly preserving the listed building by the works he
has already put in hand and that the disputed items are excessive, the owner
will be entitled to an order staying further proceedings on the compulsory
purchase order. In relation to the disputed items, the proceedings initiated in
the magistrates’ court will in due course resolve all issues of both fact and
law and can, if necessary, be taken on appeal to the Crown Court or on a point
of law to the High Court. If at the conclusion of the proceedings it is held
against the owner that some of the disputed items are reasonably necessary for the
proper preservation of the listed building, he will then be able to put in hand
the works specified in relation to those items, and it is inconceivable that
the acquiring authority would proceed with the acquisition. If they were to do
so, the owner could make a fresh application to the magistrates’ court under
section 114(6) which would be bound to succeed.
Being
satisfied that this procedure is available to protect the owner of a listed
building, who is willing to carry out such works as are reasonably necessary
for its proper preservation, from any prejudice by the inclusion in a repairs
notice of invalid items, I am equally satisfied that the inclusion of such
items does not invalidate the remainder of the notice.
I would
accordingly dismiss this appeal.
LORD
BRANDON OF OAKBROOK: My Lords, For the reasons
given in the speeches of my noble and learned friends, Lord Bridge of Harwich
and Lord Ackner, I would dismiss the appeal.
LORD
TEMPLEMAN: My Lords, For the reasons given by my
noble and learned friend, Lord Bridge of Harwich, I would dismiss this appeal.
LORD ACKNER:
My Lords, I have had the advantage of reading in
draft the speech of my noble and learned friend Lord Bridge of Harwich. I
gratefully adopt and therefore need not repeat his recital of the facts which
led to this appeal.
The central
issue in this appeal is the meaning of the phrase ‘works . . . reasonably
necessary for the proper preservation’ of a listed building, in section 115(1)(a)
of the Town and Country Planning Act 1971.
The purpose
of ‘listing’ buildings and how this is achieved
Before
considering the rival contentions of the parties, the provisions of the Act of
1971, in so far as they relate to listed buildings, must first be considered.
The purpose of ‘listing’ buildings, is to ensure the protection and enhancement
of the local heritage of buildings. The Secretary of State, pursuant to his
statutory obligation under section 54 of the Act, compiles lists of buildings
of special architectural or historic interest or approves such lists compiled
by the Historic Buildings and Monuments Commission for England and Wales, or by
other persons or bodies of persons as appear to him appropriate as having
special knowledge of, or interest in, buildings of architectural or historic
interest.
Under section
54(2), in considering whether to include a building in a list compiled or
approved under the section, the Secretary of State may take into account not
only the building itself, but also any respect in which its exterior contributes
to the architectural or historic interest of any group of buildings of which it
forms part, and the desirability of preserving, on grounds of its architectural
or historic interest, any feature of the building. Moreover, section 54(9)
contains an extended definition of ‘listed building’ to include any object or
structure fixed to the building and any object or structure within the
curtilage of the building which, although not fixed to the building, forms part
of the land and has done so since before July 1 1948.
The purpose of
‘listing’ buildings, to which I have referred earlier, is achieved in the first
place by making it a criminal offence for a person to execute (section 55(1)):
any works for
the demolition of a listed building or for its alteration or extension in any
manner which would affect its character as a building of special architectural
or historic interest.
Quite apart
from the penalties that may be incurred in carrying out unauthorised work to a
listed building, power is given to the local authority to issue a notice (a
building enforcement notice) to restore the building to its former state or to
the state in which it would have been if the terms and conditions of any listed
building consent which had been granted had been complied with (see section
96). If such a notice is not complied with not only does the owner commit a
further offence (see section 98), but provision is made for the local authority
to carry out the necessary work and recover the expenses reasonably incurred
(see section 99).
Those sections
relate to acts of commission. To cater for acts of omission, section 101
makes provision where urgent works are necessary to preserve the listed
building. In such a case the owner is given notice in writing of the intention
to carry out the works, and under section 101A the expense of executing those
works is recovered by the authority who carry them out.
Where the
works required to preserve the building are not urgently necessary, a notice
under section 115 (referred to as a ‘repairs notice’) may be served by a local
authority ‘specifying the works which they consider reasonably necessary for
the proper preservation of the building’. Such a notice, unlike a notice under
the Housing Acts, does not require the execution of any work and places
no statutory obligation upon the owner to carry out any work. It is a warning
shot, a preliminary to compulsory acquisition of that listed building if it is
not complied with. The notice has to explain that the local authority considers
that reasonable steps are not being taken for the proper preserving of the
building and that the works which they specify in the notice are reasonably
necessary for its proper preservation. It warns the owner that if the works are
not carried out within two months from service of the notice, it may exercise
its powers under section 114 of the Act to begin proceedings for the compulsory
purchase of the building. The notice also has to point out that
building has been deliberately allowed to fall into disrepair, for the purpose
of justifying its demolition and the development or redevelopment of the site,
a compulsory purchase order may include a direction under section 117 for
‘minimum compensation’; the effect of which will be to limit the compensation
otherwise payable on compulsory acquisition by requiring it to be assessed on
the assumption that neither planning permission nor listed building consent
under the Act would be granted for any works except to restore the building to
a proper state of repair and to maintain it in such a state. In cases where the
building has not been deliberately left derelict, compensation is based on the
assumption that listed building consent would be granted for any works for the
alteration or extension of the building or for its demolition, other than works
in respect of which such consent has been applied for before the date of the
order and refused or granted subject to conditions.
If the repairs
notice is not complied with, and the Secretary of State is satisfied that
reasonable steps are not being taken properly to preserve the building, he will
authorise the local authority to acquire the building compulsorily under
section 114. However, he may not make or confirm a compulsory purchase order
under this section unless he is satisfied that it is expedient to make
provision for the preservation of the building and to authorise its compulsory
acquisition for that purpose.
Thus, it will
be seen that although the owner may disregard the repairs notice, he does so at
his peril, since thereby he renders the building liable to be compulsorily
acquired. Thus, given that works are reasonably necessary for the proper
preservation of the building, their execution is achieved either at the owner’s
expense (aided by such grants as may be available) or at the public expense
after the public has compulsorily acquired the building. Thus, Parliament’s
purpose to ensure the protection and enhancement of the local heritage of buildings
is fulfilled.
The
construction of the words ‘works . . . reasonably necessary for the proper
preservation of the building’
‘Works’ within the meaning of section 115(1)(a) must be works:
1. for the preservation of
the building and
2. which the local authority
consider reasonably necessary for its proper preservation.
There is no
dispute that the works specified in the repairs notice prepared by the second
respondents satisfied 2 above. The essential issue is — whether they were works
for the ‘proper preservation of the building’. This raises two questions,
namely:
(i) the correct
construction, in its context, of the word ‘preservation’ and
(ii) by reference to what
date is the condition of the building to be preserved — and in particular is
the condition in which it is to be preserved to be that which existed as at the
date of the repairs notice or the date of its listing?
Mr Michael
Barnes QC, who has argued the case for the applicant with very great skill, has
submitted that the works of preservation are confined to works necessary to
prevent deterioration or further deterioration of the building from the
condition in which it was at the time of the notice. Accordingly, features of
the building, which on account of their architectural or historic interest had
occasioned the listing of the building but which before the service of the
repairs notice had been destroyed or seriously damaged, cannot properly be the
subject of the repairs notice. Its preservation in its condition as at the date
of the notice is all that can be required. According to this submission, it
would matter not whether it was the owner’s omissions or an act
damage.
Mr Barnes’
argument can be well illustrated by a particular feature of this windmill. In
the brief description in the list dated September 24 1951 there is a specific
reference to ‘a platform and railing round above the base,’ that is, the
rectangular brick base of two storeys. This is the ‘catwalk’ and is clearly
shown in the photograph of the mill taken not long before the listing. As at
the date of the repairs notice (October 7 1983) the catwalk was in a very poor
condition, with very little if any of the handrail intact. It would follow from
Mr Barnes’ submission that although, no doubt, some work would be necessary to
prevent further deterioration of the catwalk there would be no need to replace
any of the handrail, clearly a feature at the time the building was listed.
Indeed, Mr Barnes readily accepted that it would follow, if his submissions
were valid, that if important features of this or any building were blown or
burnt down the day before the notice was served, the repairs notice could not
extend to such features.
In my
judgment, Mr Barnes’ submissions would clearly produce results contrary to the
underlying policy of the Act, which is to preserve the building, ie to keep it
and its features as they existed at the date of listing in sound condition.
Did the
inclusion in the repairs notice of works which went beyond what was reasonably
necessary for the proper preservation of the windmill render the notice
invalid?
Mr Barnes
accepted that if the notice included works which went beyond what was
reasonably necessary for the proper preservation of the building, because the
notice required an unreasonable amount of preservation work to be carried out,
this did not render the notice invalid. For instance, where a roof was in a
state of disrepair because there were a dozen or more tiles missing, to require
the roof to be completely stripped and retiled would clearly be excessive.
However, he submitted that where the requirement was excessive, because works
specified were not works of preservation at all but were works involving
restoring the building to a condition it did not enjoy at the material date, be
it the date of listing or the date of the repairs notice, whichever be the
correct date, the notice became an invalid notice, albeit that it contained a
substantial amount of work reasonably necessary for the proper preservation of
the building. This was so because, so he submitted, the excessive demands in
the notice were not due to the incorrect assessment of the amount of
preservation work which was needed, but to a wrong construction by the authority
of the meaning of the word ‘preservation.’
I am prepared
to accept that certain of the works specified in the repairs notice went beyond
works reasonably necessary for the preservation of the building in the state in
which it was when listed since they were works of restoration to a pre-existing
state. In the notes in the list there is a reference to ‘fantail and sweeps
partly missing’. In the repairs notice the applicant was required to renew
the fantail and the sweeps. Mr Barnes submits that that is an indication that
the respondents wrongly construed the word ‘preserve’ as including restoration
to a pre-existing state. For the purpose of his argument I am prepared to
accept that he may well be right, particularly when one has regard to the fact
that work which was described as ‘long-term restoration work’ in the report of
the engineers and millwrights retained by the council was in part incorporated
in the repairs notice.
I am unable,
however, to understand why one category of excessive work can be properly
excised or severed from the notice, whereas another category attributable to an
erroneous interpretation should not be excisable or
notice which requires excessive work, whatever the reason may be for the
excess, places the owner of a property in a dilemma. He can either, without
further ado, comply with the unjustifiable requirement and thereby avoid any
risk of an application compulsorily to acquire his property or he can take the
following alternative steps. Under section 114(6) he may, within 28 days after
the service of the compulsory purchase order, of which the authority seeks
confirmation from the Secretary of State, apply to a magistrates’ court for an
order staying further proceedings on the compulsory purchase order. If the
court is satisfied that reasonable steps have been taken for properly
preserving the building, the court shall make an order accordingly.
Additionally
or alternatively, the owner, after service of the compulsory purchase order,
for which confirmation is sought, may enter an objection to the Secretary of
State, who will then hold an inquiry. The compulsory purchase order may then be
confirmed if the Secretary of State is satisfied that reasonable steps are not
being taken for properly preserving the building. Even then, as stated above,
he will not make or confirm a compulsory purchase order unless satisfied that
it is expedient to make provision for the preservation of the building and to
authorise its compulsory acquisition for that purpose (see section 114(4)). Mr
Barnes, and Mr Sullivan QC for the respondents, both accepted that before the
magistrates or at the inquiry it was not essential for the owner to have
actually carried out any work, so long as he could establish that he had taken
reasonable steps with a view to carrying out such work. For example, he may
have instructed surveyors to advise him as to which of the items in the repairs
notice could fairly be said to be reasonably necessary for the proper
preservation of the building, and having received their report and found that
only certain items fell within that category, instructed them to carry out such
work after the proceedings before the magistrates or the inquiry had
terminated.
Whichever is
the reason for the owner’s quandary, these options are open to him. Moreover
where his contention is that neither the local authority nor the Minister is
entitled in law to construe ‘works . . . reasonably necessary for the proper
preservation of the building’ in the manner in which they have done, he has the
additional right of appeal from the Crown Court to the Divisional Court by way
of case stated, and from the decision of the Secretary of State to the High
Court under section 23 of the Acquisition of Land Act 1981.
I therefore
conclude that, so long as there is not inextricably mingled in the repairs
notice works which have not the character of work of preservation, such works
can properly be excised from the repairs notice, leaving the notice valid as
respects those works which are reasonably necessary for proper preservation of
the building.
Since it is
common ground that the applicant had not carried out even those 14 out of the
20 items in the repairs list which were undoubtedly reasonably necessary for
the proper preservation of the building, the Secretary of State was entitled to
confirm the compulsory purchase order. It is also common ground that he was
entitled to conclude that it was expedient to make provision for the preservation
of the building and to authorise its compulsory purchase for that purpose.
Accordingly, for the above reasons and those given by my noble and learned
friend Lord Bridge of Harwich I would dismiss this appeal with costs.
LORD LOWRY:
My Lords, I have had the advantage of reading in
draft the speech of my noble and learned friend Lord Bridge of Harwich. I agree
with it and, for the reasons which he gives, I, too, would dismiss the appeal.
Appeal
dismissed with costs.
