Listed building – Works carried out without consent – Works damaging adjoining property – Council serving listed building enforcement notice – Council registering local land charge against adjoining property in respect of cost of default works – Owner of adjoining property seeking order to vacate land charge – Judge declaring enforcement notice invalid – Appeal of council dismissed
N owned 10 Moorgate Cottages, Carrbrook, Stalybridge, one of a row of four cottages listed as buildings of special architectural interest. The plaintiff lived at no 11. Without obtaining listed building consent, N demolished the front elevation of his house thereby withdrawing restraint to the party wall between nos 10 and 11. The council served the plaintiff with a dangerous structure notice under section 25(2) of the Public Health Act 1961 and shored up part of the front wall. In February 1985 the council served a listed building enforcement notice on N requiring works to be carried out to ‘the said building’. No notice was served on the plaintiff. N’s appeal against the enforcement notice was dismissed but the work was not done. In May 1987 the council urged a joint project between the plaintiff and N, grants for which were said to be available. 85% of the cost of default works, estimated at £9,525.45, was attributed to the plaintiff’s property. By letter dated April 27 1989 the council stated that N would be liable under the terms of the enforcement notice. The work was commenced and completed in December 1990. On October 26 1992 the council registered a caution in the sum of £7,208.62 against the plaintiff’s property. Notification of the registration of this local land charge was the first intimation the plaintiff had that the council sought this sum from him. In August 1993 the plaintiff sought a declaration that he did not owe the council any money and an order that the local land charge entry be vacated. The judge allowed the claim on the ground, inter alia , that the listed building enforcement notice was not a valid notice in relation to the plaintiff’s property because no copy of it was addressed to the plaintiff. The council appealed.
Held The appeal was dismissed.
1. A listed building enforcement notice carried criminal as well as financial liability and therefore was to be construed strictly. It was clear that the listed building enforcement notice of February 25 1985 had nothing at all to do with the plaintiff’s property. It was addressed to N as ‘the person owning and occupying all that building ‘ and ‘the said building’ meant no10 alone since each cottage was listed as a separate building. The notice did not refer to the plaintiff nor was it addressed to him. Furthermore, the council had no power to enter upon the plaintiff’s land or to recover expenses and any claim to recover under section 42 of the Planning (Listed Buildings and Conservation Areas) Act 1990 was doomed to failure.
2. The council had been in error in taking the view that the plaintiff could be responsible in any part for the damage done to his property and although an enforcement notice had not been served on the plaintiff the council had sought to claim from him as if it had. In all the circumstances it was appropriate to award costs against the council on an indemnity basis.
Timothy Ryder (instructed by the solicitor to Tameside Metropolitan Borough Council) appeared for the appellants; Richard Norton (instructed by Bromley Hyde & Robinson, of Ashton-Under-Lyne) appeared for the respondent.
