Property demolished by council without benefit of planning consent, ratepayer objects to inclusion of cost of demolition in annual accounts–Expenditure on demolition not ‘contrary to law’ whether or not the demolition itself was–Appeal from district auditor dismissed
This was an
appeal by Mr Henry Robert Derrick Beecham, of Grove Park Gardens, Chiswick,
London W4, from a decision of a district auditor, Mr S A Hills, dismissing an
objection to the expenditure of £1,034 incurred by the London Borough of
Hounslow in demolishing property in Fisher’s Lane, Chiswick W4, and approving
the expenditure for inclusion in the council’s accounts for the year ended
March 31 1974.
Mr G Dobry QC
and Mr J C Harper (instructed by J D Langton & Passmore) appeared for the
appellant; Mr D Widdicombe QC and Mr A J Anderson (instructed by
Clifford-Turner & Co) for the first respondent, the district auditor; and
Mr R A W Sears QC and Mr D J Lamming (instructed by the council solicitor) for
the second respondents, the borough council.
Giving the
first judgment, BOREHAM J said that the expenditure related to the cost of
demolishing property owned by the council on a site in Fisher’s Lane, Chiswick.
The decision to demolish had been taken following a meeting between council
representatives and tenants living in other property on the site who complained
about rat infestation in vacant property and the unsafe condition of some of
the vacant property. It appeared to have been a sensible and responsible
decision. By section 228 (1) (a) of the Local Government Act 1933 it was the
duty of the district auditor at every audit to disallow any account contrary to
law, and by section 228 (1) (b) to surcharge any amount disallowed upon persons
responsible for the expenditure. The case for the appellant both before the
district auditor and on appeal had been that the demolition amounted to
development under section 22 (1) of the Town and Country Planning Act 1971,
that as such it required planning consent, and that as this consent had not
been given the expenditure on the development was ‘contrary to law.’
He (his
Lordship) believed that there was a fallacy running through the appellant’s
argument which stemmed from the fact that the words ‘contrary to law’ had been
removed from their proper context. The provisions in section 228 (1) (a) and
(b) were mandatory. They were to be applied at each and every audit whether or
not objections were taken. Putting the words ‘contrary to law’ in their proper
context meant that a district auditor had to disallow ‘every item of account
which was contrary to law.’ In other
words, it was the item of account which had to be contrary to law if it was to
be disallowed. He (Boreham J) took that to mean that it had to be an item
which, by law, should not have appeared in the accounts, or in other words, an
item of expenditure which the local authority had no power to incur or which
had been incurred without authority. Every item of expenditure which the
accounts contained had to be intra vires. If that was so, the solution
to the present problem was not difficult. There was no doubt that the second
respondents had authority to demolish their own property and to expend money in
so doing. In that regard the local authority was acting intra vires, and
the failure to obtain planning consent, assuming such consent was required, did
not render ultra vires that which had been intra vires. It
followed therefore that the expenditure was not contrary to law. If planning
consent was required, and if the local authority’s failure to obtain it were to
lead to a loss, then it would be incumbent upon the district auditor to
consider whether such a loss should be surcharged on the persons responsible,
but that was not under consideration in the present case. The appeal should be
dismissed.
LORD WIDGERY
and DONALDSON J agreed, and the appeal was dismissed with costs.
