The extent
to which public authorities, in the exercise of their statutory functions, are
governed by the tort of negligence is one of the more interesting legal
problems to have arisen in recent years.
Since the
decision of the House of Lords in Anns v Merton LBC [1977] 2 EGLR
94, the position adopted by the courts appears to be that a distinction must be
drawn between negligence which affects policy decisions and that which occurs
at a lower, ‘operational’ level.
As far as
the former is concerned, an individual wishing to sue must show that no proper
consideration was given to the decision in question, so that it cannot be said
to lie within the limits of a discretion conferred by statute upon the local
authority. As for the latter, it will normally fall within the tort of
negligence, unless the particular activity in question itself contains a large
‘policy’ element. Thus, to take building inspections as an example (for this is
where almost all litigation has taken place), a local authority which decides to
have inspections must carry them out with due skill and care; an authority
which decides not to inspect will be liable only if it has reached that
decision ‘improperly’.
In view of
the publicity generated by Anns and subsequent cases, it is perhaps
surprising that there have not been more attempts to base claims upon the
general principle there laid down; as mentioned above, negligent building
inspection has been virtually the only source of litigation. However, there is
some reason to believe that plaintiffs are becoming more ambitious. First, in JGF
Properties Ltd v Lambeth LBC (1985) 277 EG 646, an action (which
failed on its facts) was brought in respect of the alleged failure by a member
of the defendant’s planning department to disclose, in answer to a telephone
inquiry, that a particular property was blighted. Second, albeit only at county
court level, a local authority has recently been held liable for the exercise
of its powers under the Housing Act 1957.
The case in
question, Veasey v Southwark LBC (May 24 1985, unreported)
concerned a house in Southwark which was divided into flats; from 1940 the
tenants of the ground floor were the plaintiff and her husband. In October
1976, after complaints from the plaintiff about the condition of the house, the
defendants inspected the property and were satisfied that it was in such a
state of disrepair as to be unfit for human habitation. However, for reasons
which were somewhat vague (perhaps connected with a proposed sale of the
freehold), a notice under section 9 of the Housing Act 1957, requiring work to
be done so as to render the property fit for habitation, was not served upon
the (new) landlord until August 1977. This notice duly expired after 60 days
without any work having been done but, believing that the landlord had plans to
convert the property, the local authority delayed taking further steps against
him until June 1978, when it instructed its own Public Works Department to
carry out the necessary repairs.
Even then
the plaintiff’s troubles were not over! Such was the Public Works Department’s
backlog that repairs were not actually begun until October 1978. Indeed, when
the plaintiff finally gave up and moved out (in 1979), the work had still not
been completed.
The
plaintiff brought an action in tort against the defendants, claiming that, as a
result of their failure to use their powers under the Housing Act 1957, she had
been forced to live in an unfit house for an unnecessarily long time.
This, she
alleged, rendered the local authority liable for both breach of statutory duty
and negligence.
As to breach
of statutory duty, Judge MacNair agreed that section 9 imposed an obligation
upon local authorities to take action in respect of unfit houses. However,
applying the usual tests for determining whether an individual can sue for the
breach of a statute, he concluded that the presence of other remedies precluded
such an action in this case.
In relation
to the negligence claim, both the evidence and the relevant case law were
exhaustively reviewed by the learned judge, who concluded that a duty of care
in respect of Housing Act powers was indeed owed by local authorities to
tenants and that it had been broken in this case in respect of the period from
October 1976 to August 1977. For this, damages of £750 were awarded. However,
all subsequent delays resulted from a valid exercise by the local authority’s
officers of their discretion under the statute, and so these could not give
rise to liability in negligence.
notices
In planning
law the most fraught situations are likely to arise in enforcement cases, when
an owner or occupier of land is being compelled to undo some development which
has taken place without the necessary planning permission. Local planning
authorities and their planning staffs undertake such proceedings with
reluctance because, however justified they may be, the publicity involved is
likely to be damaging. The landowner cannot help but be resentful, whatever the
rights and wrongs of the case are, and his overriding concern will probably be
— can I fight this, and if so how do I do it?
How are enforcement notices contested?
The Court of
Appeal met this question in proceedings for judicial review, R v London
Borough of Greenwich ex parte Patel [1985] 2 EGLR 256. They upheld Glidewell
J’s refusal at first instance to grant the application. The cause of the fuss
was a shed built in the garden of a house adjoining an existing shop. The house
owner, Mr N Patel, lived and worked abroad, but allowed his sister-in-law, Mrs
S Patel, the owner of the shop, to use the house for the purposes of the shop.
She built the shed, apparently without his knowledge, and after it was built
applied for planning permission to build a ‘single-storey store’, which was
treated as an application to retain the shed. The application was refused, and
an appeal to the Secretary of State was dismissed. Before the appeal decision,
however, the local planning authority served an enforcement notice on Mrs S
Patel to demolish the ‘single-storey storage building’. She ignored the notice.
After the dismissal of the planning appeal the authority prosecuted her for
disregarding the notice. She showed that she was not the owner of the house and
garden, and this gave her a complete defence.
The local
planning authority then notified Mrs Patel that they would have the shed
demolished to ensure compliance with the enforcement notice — which, be it
noted, she had not challenged.
Her
brother-in-law, the owner of the property, then learnt of the matter and gave
instructions for proceedings to be brought in the High Court for judicial
review to challenge the decision to demolish, on the ground that the
enforcement notice itself had been a ‘nullity’.
Enforcement
notices must be served in accordance with section 87 of the Town and Country
Planning Act 1971. Prosecutions for disregarding them are governed by section
89; the procedure for entry and execution of works by the authority is laid
down in section 91; both sections presuppose a valid enforcement notice which
is being flouted. But the validity of any enforcement notice can be challenged;
and section 88 (as amended) lists several grounds on which an appeal may be
made to the Secretary of State. Section 243 allows his decision on appeal to be
challenged, in its turn, in the High Court, but only on a point of law; it also
provides that some (not all) of the grounds listed in section 88 cannot be used
in any proceedings for challenge except under section 88 itself. This implies
that the other grounds can be so used — ie in court proceedings.
And since
the grounds listed in section 88 are not exhaustive there are yet other grounds
that can be used in court proceedings but not under section 88. The time-limit
for appealing to the Secretary of State can be very short, even as little as 28
days; and in this case it had expired long before Mr Patel intervened. He
therefore tried to find a ground of challenge not ruled out as being one
which can only be used under section 88.
He claimed
that since section 87(4) of the 1971 Act requires an enforcement notice to be
served on ‘the owner . . . of the land to which it relates’, the failure to
serve it on him in this case made it a ‘nullity’, even though such failure is
one of the grounds which section 243 says can only be used under section
88 — ie he claimed that the ‘nullity’ issue, which in principle is a proper
ground for challenge in court proceedings, was a separate ground from the
failure itself. The Court of Appeal rejected this artificial argument. In any
case sections 88 and 243 allow section 87(4) to be disregarded where an
owner has not ‘been substantially prejudiced’.
Therefore,
since there are cases when compliance with it is in fact dispensed with,
failure to comply with it cannot possibly make the enforcement notice a
‘nullity’. The owner’s attempt to circumvent the prohibition in section 243
failed.
