Demolition of house in conservation area–Town Clerk’s letter prohibiting demolition expressed to take effect that day–Clear implication that that was because it was expedient for the direction to take immediate effect–Absence of an explicit reference to expediency immaterial–Dictum
This was an
appeal by Endersby Properties Ltd against their conviction at Snaresbrook Crown
Court on May 5 1975 of causing the execution of works for the demolition of the
White House, 39 Snaresbrook Road, Wanstead, London, without authorisation,
contrary to the provisions of section 55 (1) of the Town and Country Planning
Act 1971. The court imposed a fine of £10,000, with costs not exceeding £1,000.
Mr G N Eyre QC
and Mr D W Keene (instructed by Malcolm Ellicott & Co) appeared for the
appellants, and Mr C S Fay (instructed by the solicitor to the council)
represented the respondents, the London Borough of Redbridge.
Giving the
judgment of the court, LAWTON LJ said that the White House, which was situated
in the Snaresbrook conservation area, could formerly have been demolished
without the consent of anybody. But following the 1972 amendment of the 1971
Town and Country Planning Act, buildings in conservation areas acquired the
same kind of protection that was afforded to listed buildings. The provisions
of the later Act allowing local planning authorities to bring conservation
areas within the terms of section 55 of the 1971 Act were enshrined in section
8, subsection (3) of which called upon an authority making a direction under
the section to submit it to the Secretary of State for the Environment for
confirmation. It was appreciated, however, that local authorities might
suddenly become aware of demolition works and that there would then be no time
to await the confirmation of the Secretary of State. Section 8 (4) thus
provided for a direction to take immediate effect if it contained a declaration
by the local planning authority that that was expedient. In effect, therefore,
Parliament envisaged two distinct categories of directions, those which were
immediately operative and those which awaited the Secretary of State’s
confirmation.
On March 13
1973 the Town Clerk of the London Borough of Redbridge wrote to the Secretary
of the appellant company, pointing out that the demolition of buildings in a
conservation area was subject to control in order to preserve the appearance of
the area, and directing the cessation of demolition works in respect of the
White House. The letter pointed out that the building was to be treated as if
it were a listed building, and the direction was to take effect that day, March
13. There was no dispute but that the direction was served upon the company and
demolition work ceased. But the company sought legal advice, and later advised
the local authority through a surveyor named Hawkins that demolition would
proceed. Demolition of the building was completed by April 3 1973, and the
White House ceased to exist in any shape or form on that day. The basis for
that advice, and for the argument now before the court, was that the direction
contained no reference to its being expedient that it should take immediate
effect. It was submitted that the absence of any such reference amounted to a
fatal flaw, that the direction thus became a direction under section 8 (2)
requiring the confirmation of the Secretary of State, and that no confirmation
as such having been obtained, no offence had been committed.
It could not
have been clearer from the form of the direction that demolition work was to
cease after March 13. It was also conceded that any reasonable person reading
it would appreciate that the local authority thought it expedient to act at
once. But it was contended that that was not enough, and that the notice did
not comply with the express words of the statute. Accordingly it was said that
however useless the words might be, if Parliament saw fit to make it a
provision of some Act that ‘magic words’ had to be used, then magic words had
to be used. The case of East Riding County Council v Park Estate
(Bridlington) Ltd [1957] AC 223 was cited to the court in support of that
proposition. In that case, the House of Lords held that an enforcement notice
issued by the local authority under the provisions of the 1947 Town and Country
Planning Act was invalid because it did not specify that the complaint was one
of development before the coming into operation of the 1947 Act. Lord Simonds
said at p 233, ‘The court must insist on a strict and rigid adherence to
formalities. This, as a general proposition, commands assent, and not the least
because disregard of an enforcement notice is an offence involving sufficiently
serious penal consequences.’ But it was
important to bear in mind the context of Lord Simonds’ remarks. In the East
Riding County Council case, procedural consequences were of the greatest
importance, and the comments of Lord Simonds with regard to such a
subject-matter should not be regarded as holy writ applicable to all cases.
Later cases had shown that notices under this legislation had to indicate to
recipients what it was they were alleged to have done, and specifically, what
they had to do to put themselves in the right. The problem in the present case
was whether the magic words really added anything to the enforcement of the
notice. Since it was conceded that any reasonable person would think that the
direction was to take effect immediately, the fact obviously was that he would
appreciate that that was because it was expedient for it to do so. In other
words, the declaration of expediency was implicit in the form of the direction.
In those circumstances, as a matter of the construction of this particular
direction, the court was of the opinion that the ruling of the judge was right
and that the appellants had no defence to the prosecution.
The appeal
was dismissed.