Listed building — Urgent works of repair to unoccupied building — Local planning authority carrying out works in default — Recovery of expenditure — Whether account demanding payment proper notice — Contents of section 101 notice — Provision for representation
The respondent
is the owner of a listed building. In August 1984 the appellant local planning
authority gave notice to the respondent under section 101(4) of the Town and
Country Planning Act 1971. This notice stated that urgent works were required
to be carried out by the appellant on the building, and an accompanying letter
stated that the cost of these works would be recovered from the respondent.
After the
completion of the works of repair, the appellant sent an account to the
respondent. This stated the sum due, the VAT payable, and the office where the
total could be paid. The appellant’s claim for this sum was dismissed by a
judgment of Mr Assistant Recorder Gilliland QC in the Bolton county court on
the ground that the account was not a proper notice under section 101(6) of the
1971 Act.
The account
was not a proper notice for the purposes of section 101(6) of the 1971 Act.
Under the following subsection (7) it is contemplated that representation might
be made and that the Secretary of State for the Environment should consider whether
those representations are justified; a notice under subsection (6) should
contain sufficient information to enable representations to be made: see p
100E.
The notice
was, in any event, bad in that it demanded the recovery of the sum with no
mention of the fact that it was only recoverable subject to the provisions in
the following subsections: see p 100G.
Where an
authority is seeking to exercise a statutory power to recover expenditure, the
recipient must be given that information in a language, however untechnical,
that will be understood: see p 101E.
referred to in the judgments
Appeal from
the Bolton county court
This was an
appeal from a decision of Mr Assistant Recorder Gilliland QC (July 15 1988) in
the Bolton county court to dismiss a claim for £ 3,478.18 as a sum due and
recoverable under section 101 of the Town and Country Planning Act 1971.
(instructed by the solicitor to the council) appeared for the appellant local
planning authority.
respondent appeared in person.
following judgments were delivered.
PARKER LJ: This is an appeal by the plaintiff from a judgment in the Bolton
county court given by Mr Assistant Recorder Gilliland QC on July 15 1988
whereby he dismissed the plaintiff’s claim for £ 3,478.18 and interest.
The point
raised is a very short one and has been shortly and very clearly argued on
behalf of the appellant. The claim is made under section 101 of the
Town and Country Planning Act 1971 as substituted by section 5 of the Town and
Country Amenities Act 1974. The substituted section has been later amended, but
not as to those of its provisions which are relevant on this appeal. So far as
immediately material, the section provided:*
101.–(1) This section applies to
any unoccupied building which satisfies one of the conditions specified in
subsection (2) below but is not an excepted building as defined in section
58(2) above.
(2) The conditions mentioned in subsection (1)
above are —
(a) that the building is a listed building . . .
(4) If it appears to a local authority that any
works are urgently necessary for the preservation of a building to which this
section applies and which is situated in their area, they may execute the
works, after giving the owner of the building not less than seven days’ notice
in writing of their intention to do so.
. . .
(6) The local authority . . . may give notice to
the owner of the building requiring him to pay the expenses of any works
executed under subsection (4) . . . above; and if such a notice is given by the
local authority . . . the amount specified in the notice shall be recoverable
from the owner subject to subsections (7) to (9) below.
(7) Within 28 days of the date of a notice under
subsection (6) above, the owner may represent to the Secretary of State —
(a) that the amount specified in the notice is
unreasonable; or
(b) that recovery of it would cause him
hardship; or
(c) that some or all of the works were
unnecessary for the building’s preservation.
(8) The Secretary of State shall determine the
extent, if any, to which representations under subsection (7) above are
justified.
(9) The Secretary of State shall give the owner
and the local authority notice of any determination under subsection (8) above
and of the reasons for it, and of the amount (if any) which is to be
recoverable from the owner; and no sum shall be recoverable from him unless it
is so notified.
*This section
has now been replaced: see section 40 of, and Schedule 9, Part I, to, the Housing
and Planning Act 1986: Ed.
The respondent
is the owner of a listed building, namely the Bridge Street Methodist Church in
Bolton. The building is unoccupied and is not an excepted building, and it is
therefore a building to which section 101 applies.
On August 10
1984 the appellant gave a valid notice under subsection (4) under cover of a
letter of the same date. The letter reads as follows:
I enclose
herewith by way of service upon you a notice in respect of works which are urgently
necessary for the preservation of the above building under Section 101(4) of
the Town and Country Planning Act 1971.
In the event
of the Council’s contractors carrying out the works you will be served with a
notice under Section 101(6) requiring you to pay the expenses of such works.
You will be able to make representations to the Secretary of State in respect
thereof ie that the amount specified in the notice is unreasonable, that
recovery would cause you hardship or that some or all of the works were
unnecessary for the building’s preservation. Should you have any queries with
regard to the works please contact Mr C Waters on extension 273. If you wish to
volunteer to carry out the works yourself then this can be discussed with Mr
Waters and a member of my staff.
Attached was
the notice under the Act. It began:
TAKE NOTICE
that it appears to the Council of the Borough of Bolton . . . that the works
specified in the schedule hereto are urgently necessary for the preservation of
Bridge Street Methodist Church, Bridge Street, Bolton (hereinafter called ‘the
building’).
AND TAKE
NOTICE that, in pursuance of Section 101 of the Act the Council intends to
enter the building and execute the works on 11th September 1984 or on any date
thereafter.
AND TAKE NOTICE
that the expenses of executing the specified works will be recoverable from
you.
Then there are
set out under 12 subheadings what is to be done. It is unnecessary to read all
of them, but I read 1, 3, 6 and 7:
1. Replace all
cracked loose and missing roof slates.
3. Connect by
means of suitably laid drains the rain water pipes to the existing surface
water drainage system.
6. Take down
and rebuild the two flue brick chimney stack to the rear extension.
7. Build up
in 9 in brickwork the stone surround circular window in the north wall of the
main body of the church.
That notice
having been served, the respondent met representatives of the council on a
number of occasions. He did not carry out any works himself except for the
removal of a chimney, and in due course the council invited tenders. A tender
was accepted on December 6 for the work to be done by a firm called Bolton
Building Services for a fixed figure of £ 2,700. Immediately prior to
acceptance of that tender, the appellant wrote to the respondent on December 4
in the following terms:
Further to my
letter of 11th October and subsequent site meetings, it has now become
necessary to enforce the Repairs Notice on the above building. In accordance
with minute 27 of the Planning Industrial Development Committe meeting on 24th
May 1984 (confirmed by Council on 27th June), a competitive tenderer has been
accepted by the appointed sub-committee and the work of making the premises
secure is to commence on Wednesday, 5th December 1984.
In due
course, the Director of Finance will be forwarding to you a bill relating to
the costs of these works.
The work was
duly carried out, and on February 25 1985 Bolton Building Services submitted an
account to the appellant in the following terms:
Bridge St,
Methodist Church, Bolton.
Repairs to
Brickwork Gutters and Rainwater Pipes all to your Specification Dated November
19th 1984 —
£ 2,630, plus
VAT, £ 394.50, making a total of £ 3,024.50. There was attached to that a
manuscript note:
N.B. Contract
figure £ 2,700.00 this reduced by £ 70.00 allowance for non demolition of
single flue chimney to annexe — demolished by owner.
Having
received that account from Bolton Building Services, the council then sent to
the respondent on March 7 an account in the following terms:
DEVELOPMENT
SERVICES
and the VAT
registration number is set out —
|
BRIDGE |
|
|
To |
3,024.50 |
|
+ VAT |
453.68 |
|
|
£3,478.18 |
I am not myself clear how the VAT becomes payable if this is simply
a recovery of expenses, but it does not now arise. At the end of the account
there appears the following:
This account
is now due and should be paid at the collecting offices shown overleaf or by
post to the address shown above.
And there is a
provision as to how cheques should be made out.
The sole point
on the appeal is whether the account rendered by the finance department from
the town hall, Bolton, to which I have just referred, was a proper notice under
section 101(6) of the Act. The learned judge, in a careful judgment and
expressing himself to do so with some reluctance, came to a clear conclusion
that this was not a valid notice under section 101(6). He may be thought to
have indicated that it was essential that the words ‘Take notice’ should appear
in any notice served under the Act. For myself, I do not accept that that is
what he intended but undoubtedly he did intend to indicate that there must be a
clear statement that the expenses were being sought under the section. He also
took the view that the statement that the account was now due was a misleading
statement, and for that reason also the notice was a bad notice.
It is argued
before us by Mr Evans that there is no requirement in subsection (6) for the
owner of the property concerned to be informed in any way of his rights under
subsection (7) or of the provisions of subsections (8) and (9). He draws our
attention to section 115 of the 1971 Act, which deals with a repairs notice as
a preliminary to compulsory acquisition under section 114, and which, when
specifying the works which are considered to be necessary for proper
preservation, should contain an explanation of the effect of section 114 itself
and sections 115-117. There is of course no equivalent provision in section 106
which deals only with recovery of expenses. Nor is there any such provision in
section 101(4) which deals with the giving of the repairs notice. The two are
therefore not in pari materia, but it is not suggested that the
learned judge was requiring the specific terms of the subsections to be set
out.
It is
submitted that the bill was itself adequate, taken in the light of what had
preceded it, namely the valid notice of August 10 and the letter of December
14. For my part, I am quite unable to accept that the bill relied on as a
notice is a valid notice under subsection (6). It appears to me that the very
least that must be required, when a notice requiring the payment of expenses
for works executed under subsection (4) is given, is that the notice should
state that the amount specified is recoverable subject to subsections (7) to
(9) of section 101. Had it so specified, it may be that this notice would have
been valid, although I have some doubt about the matter in view of the
provisions of the following subsections. But to state that the amount was then
due was clearly incorrect, for no amount would ever become due if
representations under subsection (7) were made within 28 days and, in addition,
the Secretary of State for the Environment had come to the conclusion that all
or some part of the expenses were recoverable, and had so notified the
respondent.
My doubts
about the document relied upon as a notice, even had it said ‘The amount is due
subject to the provisions of subsections (7), (8) and (9) below’, are these. It
is contemplated by subsection (7) that representations might be made under
three heads. It is then contemplated that the Secretary of State, having
considered the representations, should consider whether they are justified, and
that thereafter he should determine what amount, if any, should be paid. It
appears to me that a notice under subsection (6) in all probability should
contain sufficient information to enable representations to be made to the
Secretary of State upon which he would be able to form some conclusion as to
its validity or otherwise. The bill, which was presented, would not enable, as
I see it, anybody to say that there has been, for example, windows boarded up
which were unnecessary, or that some of the repairs to the brickwork and
gutters were unnecessary, because there was no detail
probability’ because it is unnecessary to reach a final conclusion on that
matter. I content myself in saying that the notice was, in my judgment, bad in
that it demanded recovery of the sum with no mention of the fact that it was
only recoverable subject to the provisions of the following subsections.
I would
dismiss this appeal.
BINGHAM LJ: The council’s letter of August 10 1984 and their notice under
section 101(4) of the same date were, in my view, models of their kind. They
identified the statutory power under which the council were acting; they gave a
brief but clear summary of the statutory provisions; they gave the defendant
clear notice of the council’s intentions and put him in a position to seek
advice if he wanted to; and they gave details of the work to be done.
When one turns
to the account of March 7 1985 submitted to the defendant the contrast is
obvious. That document gives no indication that the council were purporting to
exercise a statutory power; it makes no reference to any section or to any Act;
it contains only a most general summary of the work done; and it gives no
notice of anything. It simply contains a demand for payment.
Counsel
submits that the statute does not prescribe any form for the notice under
section 101(6); that it does not require the effect of the section to be
explained, as is, for example, required by section 115(1)(b); and that
reference to the defendant’s rights had already been made in the council’s
earlier letter. Those points are, so far as they go, quite correct. But the
statute does unquestionably require notice to be given, and the council never
gave the defendant anything which, in my view, could reasonably be regarded as
a notice requiring him to pay the expenses of the works executed. An advance
warning, although proper and valuable, is not a notice such as the Act
requires. Parliament must, in my judgment, have intended, in the interests of
good administration, that the citizen should be plainly told in language,
however untechnical, that the council was seeking to exercise a statutory power
to seek reimbursement; otherwise the citizen might reasonably conclude that he
was not obliged to pay for work he had never asked to be done. In the absence
of such notice, he would not be prompted to seek advice on his rights, if any,
under the statute. Parliament must also, in my judgment, have intended, in the
interests of good administration, that the defendant should be given enough
detail to enable him to consider whether to exercise his rights. Parliament
must also, in my judgment, have intended that the notice should not be
misleading, and the council’s account calling for immediate payment was, no
doubt unintentionally, misleading, given the provisions of subsections (7), (8)
and (9) of section 101.
I completely
agree with the clear and well-reasoned judgment of the assistant recorder and
with the reasons given by Parker LJ, and I am accordingly of the opinion that
the appeal must be dismissed.
Appeal
dismissed with costs assessed at £ 112.
