Braun v First Secretary of State and another

Respondent purchasing listed building and carrying out unauthorised works — Unauthorised works also carried out by previous owners — Whether section 38 of Planning (Listed Buildings and Conservation Areas) Act 1990 giving local authority power to order respondent to rectify all contraventions since date of listing In 2000, the respondent purchased a building that had been listed in 1970. Previous owners had carried out various alterations to the building without permission. The respondent carried out further repairs and alterations and applied for retrospective planning permission. The local planning authority failed to decide that application and served a listed building enforcement notice on the respondent. The respondent successfully appealed against the enforcement notice and the appellant Secretary of State appealed that decision. Two matters arose: (i) could the local planning authority enforce against an occupier in respect of not only his own works but of all contravening works back to the date of listing?; and (ii) did the authority clearly specify their intentions to do so in the enforcement notice? Held: The appeal was dismissed. Although an owner could not be prosecuted under section 38 of the Planning (Listed Buildings and Conservation Areas) Act 1990 for unauthorised work carried out by his predecessors in title, section 38 did give the local authority the power to issue an enforcement notice to rectify all contraventions back to the date of listing. However, where that notice was intended to reverse all such contravening works, it had to make that intention absolutely clear so as to comply with the requirement in section 38(2) that the notice “specify the alleged contravention”. It was obvious that the respondent had believed that the council had intended to enforce only in respect of the works that he had himself carried out, and the appellant had done nothing to dispel this misapprehension. The wording of the enforcement notice was ambiguous and did not comply with section 38(2) of the 1990 Act. John Litton (instructed by the Treasury Solicitor) appeared for the appellant; the respondent appeared in person; the second defendants, Hammersmith and Fulham London Borough Council, did not appear and were not represented. Vivienne Lane, barrister