Listed building – Reports indicating damage – Defendant considering repair uneconomic and proposing to demolish – Application for listed building consent – Urgent works notice served by claimant council – Roof collapsing in course of works – Defendant proposing to demolish building immediately for safety reasons – Whether appropriate to grant injunction to prevent demolition pending decision on listed building consent application – Application allowed
In 2007, the defendant purchased a Grade II listed building in Derby that had originally been built as a theatre in 1914. By 2005, the building had fallen into disuse. The defendant obtained various reports on the condition of the building, which highlighted extensive damage to the structure and indicated that its refurbishment would be uneconomic. He obtained a further report from a property consultant with regard to safety issues, seeking its advice as to what works might be required urgently in the interests of health and safety. That report indicated that a controlled demolition of the building was needed and that no other options were viable given the dilapidated and unsafe condition of the building.
The defendant contacted the claimant council, requesting the necessary forms to apply for listed building consent for the proposed demolition. The claimants believed that the building did not require demolition but could be repaired, and they obtained their own report from a structural engineer supporting their view. Subsequently, a fire caused further damage to the building. Following a further inspection by the engineer, the claimants served an urgent works notice, pursuant to section 54 of the Town and Country Planning (Listed Buildings and Conservation Areas) Act 1990, requiring various works to be carried out to the roof, balconies and other parts of the building. The defendant complied with some of these. In the course of carrying out roof works, a substantial part of the roof collapsed into the building, further damaging the upper balcony. The claimants issued a further urgent works notice requiring, inter alia, an exclusion zone around the building by way of a security fence and employment of 24-hour security.
The defendant and his advisers considered that the building could collapse at any time and that the exclusion zone did not insufficiently protect the public. He proposed to commence demolition as soon as possible. The claimants maintained that the building was not in danger of collapse and should be preserved, pending a decision on the listed building consent application. They applied for an injunction, under section 44A of the 1990 Act, to restrain the claimant from carrying out demolition works in the meantime.
Held: The application was allowed.
In the absence of an injunction, the defendant would demolish substantial parts of the remaining building, which would cease to exist in any meaningful sense such that any prospects of renovation, repair and refurbishment would be lost. The demolition would be a “controlled demolition”, which would breach section 9(1) of the 1990 Act in the absence of listed building consent. Parliament had provided that the issue of whether consent should be given for the partial or total demolition of a listed building should be determined by a local planning authority or by an inspector on appeal. It was desirable that the defendant’s application for such consent should be so determined, since either one would have considerable expertise in evaluating all the relevant considerations and would be well equipped to make that decision. Accordingly, it was appropriate to grant an injunction unless there was an immediate need to undertake the demolition work in the interests of protecting the health or safety of individuals and the works proposed were the minimum immediately necessary to achieve that aim.
On the evidence, within a timescale measured in months, the upper balcony or the street elevation of the building were not in immediate danger. The risk of a collapse of major parts of the building was not such that demolition should be started as a matter of urgency. With regard to trespassing, the defendant would be unlikely to be liable for any injury that a trespasser might suffer, if he maintained the exclusion zone and ensured that it was properly policed. An injunction would be granted accordingly.
Garrett Byrne (instructed by Ashford Solicitors, of Exeter) appeared for the claimants; Charles Mynors (instructed by Sylvester Amiel Lewin) appeared for the defendant.
Sally Dobson, barrister
