R v Secretary of State for Wales, ex parte Swansea City and County Council

Secretary of State limiting recovery of expenses incurred by applicants in carrying out works to building – Secretary of State finding works not being “urgently” necessary – Applicants seeking to impugn decision – Planning (Listed Buildings and Conservation Areas) Act 1990 section 55 – Application allowed Southgate County Club owned a Grade II listed building. Swansea City and Council Council (the applicants) issued a notice pursuant to the Planning (Listed Buildings and Conservation Areas) Act 1990, notifying the owners that they intended to carry out works to the building. Upon completion of those works, the applicants served a notice under section 55 of the Act, claiming a sum of £5,861.60 in respect of expenses incurred in carrying out the works. In September 1995 the owners made representations to the Secretary of State under section 55(4)(a) of the Act, claiming that the works done were unnecessary for the preservation of the building and that the amount specified in the notice was unreasonable. In his decision letter of November 1996 the Secretary of State found that it was a “prerequisite to the recovery of expenses under section 55 of the 1990 Act that the works to which they relate must: fall within the definition of urgent works for the purposes of section 54 of the 1990 Act”. The Secretary of State determined that the applicants were only entitled to recover £56.64 from the owners. The applicants submitted that the Secretary of State had misdirected himself as to the proper construction of the Act. It was submitted that the Secretary of State had erred in finding that it was a precondition for recovery of expenses that the works were in fact “urgently” necessary. Held The application was allowed. The applicants’ construction of section 55 was preferred and accorded with the policy underlying the provisions. Expenses incurred as a result of works that were carried out lawfully pursuant to section 54(1) were recoverable, subject only to the four grounds specified in section 55(4). None of those grounds prevented recovery of expenses where the works were lawfully undertaken, in that they appeared to the authority to be urgently necessary and were later deemed to have been necessary, but not “urgently” necessary. The omission of the word “urgently” from section 55 was significant. It was highly unlikely that the draftsman had mistakenly omitted it. Section 55(4)(a) simply referred to whether or not the works were “unnecessary” and did not refer to the question of urgency. It was unnecessary to infer missing words into the section. Thomas Hill (instructed by the solicitor to Swansea City and County Council) appeared for the applicants; Christopher Katkowski (instructed by the Treasury Solicitor) appeared for the respondent.