Applicant purchasing listed building from council – Building in disrepair – Council issuing enforcement notice and commencing criminal proceedings for failure to comply – Whether issue of enforcement notice and commencement of criminal proceedings and subsequent refusal to discontinue proceedings abuse of power – Divisional Court dismissing application
On March 31 1992 the applicant purchased from the respondent council the freehold of a Grade II listed building known as Sandown House, 1 High Street, Esher. The property was in a state of disrepair. The council’s agent’s described the property as “in need of refurbishment and with the benefit of Planning Approval for extension, alteration and refurbishment”. Subsequently the respondents issued a listed building enforcement notice dated February 16 1994, which required the reinstatement of certain objects, such as fire surrounds. Following an appeal against the enforcement notice the Secretary of State for the Environment ordered that the period of compliance be extended. After negotiation with the council it was further extended to June 13 1996. On August 9 1996 an information notice was laid by the council against the applicant for alleged breach of the enforcement notice and criminal proceedings against the applicant were commenced. The council issued a decision letter dated April 23 1997 not to discontinue the criminal proceedings. The applicant applied for judicial review of the council’s decisions to issue the enforcement notice, to prosecute the applicant and to not discontinue the proceedings. The applicant claimed that the dominant purpose in respect of the decision to issue the enforcement notice and take criminal proceedings was not the reinstatement of the items referred to in the notice, but rather to compel the applicant to carry out a complete restoration of the building. It was submitted that therefore it was appropriate to apply the test that where there were two or more dominant purposes for which the power was exercised, the legality of the act was to be determined by the dominant purpose. Since the dominant purpose was not authorised either expressly or impliedly, because there was no duty under the Planning (Listed Building and Conservation Areas) Act 1990 on an owner of a property to take active steps to maintain a listed building, the decision to commence criminal proceedings was ultra vires and unlawful.
Held The application was dismissed.
It was not appropriate to apply the test that where there were two or more purposes, of which only one was expressly or impliedly permitted, the legality of the act was to be determined by reference to the dominant purpose, because there was no express statutory power to prosecute specified in the 1990 Act. The appropriate test was whether the council’s act of prosecuting the applicant was unreasonable. The council’s decision was based on a desire to see the building restored. They knew that the applicant was in breach of the enforcement notice and considered there was no reason for not prosecuting. That was a legitimate approach and the court was not entitled to interfere with the council’s decision.
Gregory Jones (instructed by Fearon & Co, of Woking) appeared for the applicant; Harriet Murray (instructed by the solicitor to Elmbridge Borough Council) appeared for the respondent.
