Listed buildings falling into disrepair — Inappropriate use of surrounding land compounding damage — Challenge to order for discontinuance of use made under section 102 of Town and Country Planning Act 1990 — Whether additional onus of proof on defendant due to draconian nature of the order — Appeal dismissed
The claimant owned land that included listed buildings in a state of disrepair and a yard. The land had been farmed by three generations of the claimant’s family since 1929. The yard was used for storage, business and agricultural use, and was littered with abandoned machinery, building materials and general refuse. The second defendant local authority had pursued various environmental and public health actions against the claimant, but their concerns about the property had not been satisfactorily resolved. The authority concluded that an order for compulsory purchase of the listed buildings would be insufficient to halt the damaging use of the accompanying land, and resolved to pursue a long-term policy of restoration. In 2001, the authority issued an order under section 102 of the Town and Country Planning Act 1990, requiring the claimant to discontinue use of the yard. A public inquiry was held, and the first defendant Secretary of State confirmed the order in 2002 on his inspector’s recommendation.
The claimant challenged the inspector’s decision under section 288 of the 1990 Act. He argued that: (i) an order under section 102 was a draconian measure akin to an order for compulsory purchase, and that, following Coleen Properties Ltd v Minister of Housing and Local Government [1971] 1 All ER 1049, the inspector should have imposed an onus upon the authority to adduce additional evidence as proof that the order sought should be granted; (ii) the authority had misused their powers under section 102 in that, although the avowed intention was to prohibit use of the yard, the real purpose of the order was to gain access to the listed buildings, for which the authority should have relied upon the provisions of the Listed Buildings Act 1990; (iii) the section 102 order excluding all uses was disproportionate to the desired aim, and a lesser restriction of use would have sufficed to achieve the desired effect; and (iv) such an order infringed the claimant’s right to peaceful enjoyment of his home under the provisions of the Human Rights Act 1998.
Held: The appeal was dismissed.
Although section 102 was a draconian measure, it did not impose an additional burden of proof upon the authority. The relevant test was that set out in R v Secretary of State for Transport, ex parte de Rothschild [1989] 1 All ER 933, that the compulsory purchase of land had to be “decisively” in the public interest. The inspector had correctly reviewed all the relevant authorities, and was correct in his analysis that such an order was expedient and sufficiently justified under section 102, taking into account the damage to visual amenity, the desirability of restoring the listed buildings, and the local council’s statutory duty to consider the setting and use of surrounding land in respect of a listed building. The powers given under the order had not been exercised capriciously on the facts of the case. Coleen Properties turned on the facts of that particular case and was of no assistance here. It would not have been sufficient for the authority to proceed with a compulsory purchase order of the listed buildings only to allow the claimant to continue with the use of the yard, because the continuation of the inappropriate use would have outweighed the benefits of the restoration. The authority and the inspector had been correct to give equal weight to the restoration of the building and its setting.
The claimant’s right to peaceful enjoyment of his home under human rights legislation was outweighed by the public interest issues, such as the effect of his activities upon neighbouring properties and the environmental damage caused by those activites. Moreover, under section 102 the claimant would be financially compensated for the loss of his home and business.
David Fletcher (instructed by Thring Townsend, of Bath) appeared for the claimant; Philip Coppel (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants did not appear and were not represented.
Vivienne Lane, barrister
