Property – Building control – Demolition order – Appellant purchasing dilapidated building – Respondent local authority serving notice requiring repair or demolition – Appellant failing to produce refurbishment proposal – Respondents making order for demolition – Whether respondents reaching irrational decision – Whether respondents acting in breach of appellant’s European Convention rights – Appeal dismissed
In 2000, the appellant company purchased a derelict nine-storey office building which had been vacant since 1995. It was severely fire-damaged in 2001 and had suffered severe neglect and repeated trespass, arson and dilapidation.
As a result, the respondent local authority came under pressure from local residents to encourage the appellant to bring forward proposals for the refurbishment of the property. When the parties failed to reach agreement, in October 2006, the respondents served an ineffective building notice of dilapidations on the appellant pursuant to section 79(1) of the Building Act 1984. The parties then entered into discussions as to the acceptable terms of such a notice and the appellant undertook in writing that, upon receipt of a second notice in agreed terms, it would withdraw its appeal against the first notice; would not appeal against the second notice; and would elect to demolish the building instead of restoring or repairing it.
A second notice was served in September 2007 but, by 2009, demolition work had not commenced and no further progress with proposals for an alternative refurbishment scheme had been made. In those circumstances, the respondents notified the appellant of their decision to proceed with demolition pursuant to the section 79(1) notice. The appellant sought to challenge that decision by way of judicial review on the grounds that it was irrational and that the respondents should have suspended or cancelled the exercise of their power under section 99(2)(a) of the 1984 Act and approved the proposal for refurbishment. Further, the appellant argued that the decision amounted to an unjustified interference with its rights of property in the building contrary to article 1 of the first protocol to the European Convention on Human Rights. The judge dismissed the application: [2011] EWHC 2325 (Admin). The appellant appealed.
Held: The appeal was dismissed.
(1) It could not be said that passage of time and events, and the respondents’ experience of those events and the parties involved, were incapable of having a rational impact upon their judgment whether demolition should continue. On the evidence, the respondents had been dealing with the appellant and a potential developer in relation to the property since 2006; it had always made its state of mind clear to those parties and had been thanked for doing so. The respondents had given time and lent their support to the proposed refurbishment scheme, while notifying the appellant that, if demolition was to be avoided, real progress had to be made towards an alternative solution. Having extended its deadline, it found weaknesses in the proposal eventually advanced on 21 January 2011 which did not provide the guarantees which the respondents had sought in advance from the parties. Accordingly, it was a rational exercise of judgment to conclude that, while refurbishment was the preferred option, the respondents could no longer defer to hope over expectation.
(2) Further it was not the case that the respondents’ consideration of commercial issues had no bearing upon their proper function of achieving the statutory purpose behind Section 79 of the 1984 Act. The contents of a letter written by the respondents dated 4 February 2011, gave the reasons why their principal concern was the proper management of the detriment to public amenity. Since that detriment had been accumulating over a substantial period of time, the respondents were entitled to examine with some care the latest and very late proposals to rescue the proposal for refurbishment. The fact that the respondents were making a critical examination of the commercial viability of the project did not signify that they were making their decision on commercial rather than statutory grounds. The appellant had failed to demonstrate that the respondents either took into account an irrelevant consideration or allowed themselves to stray from the statutory purpose. In order to advance the statutory purpose of removing the detriment to public amenity, it was necessary for the respondents to give consideration to its commercial viability.
(3) As regards the appellant’s European Convention rights argument, the court was prepared to assume that the appellant was not precluded from raising its article 1 rights at the enforcement stage. However, the test was whether the respondents were exercising their powers legitimately in the public interest and proportionately. Having concluded that they had made a rational judgment in pursuit of the public interest identified in section 79 of the 1984 Act, it was clear that the interference was justified and proportionate for the purposes of article 1 of protocol 1: Aston Cantlow & Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37, [2003] PLSCS 150, [2007] 27 EG 137 (CS) considered.
Gerard Clarke (instructed by Blick & Co) appeared for the appellant; Andrew Tabachnik (instructed by Stockton-on-Tees Borough Council) appeared for the respondents.
Eileen O’Grady, barrister
