Listed building — “Smock” mill — Repairs notice — No reasonable steps taken to comply — Compulsory purchase order — Challenge to order — Whether repairs notice defective — Meaning of preservation — Whether specified steps reasonable — Whether notice severable
The appellant owns Willesborough Windmill, Ashford, Kent. It is a “smock” mill built in 1868. It was in working until 1938 and in 1951 it was listed as a building of special architectural and historic interest. It fell into a state of disrepair and in October 1983 Ashford Borough Council, the local planning authority, served a repairs notice under section 115 of the Town and Country Planning Act 1971. A repairs notice specifies “the works which [the planning authority] consider reasonably necessary for the proper preservation of the building”. The repairs notice specified some 20 items of work.
In October 1984 a compulsory purchase order was made by the local planning authority under section 114 of the 1971 Act on the ground that the appellant had not taken reasonable steps to preserve the windmill. Following a local inquiry in December 1985 into the appellant’s objections to the order, the order was confirmed by the Secretary of State for the Environment in December 1986. The Secretary of State acknowledged in his decision letter that in respect of six items the original repairs notice went beyond the steps reasonably necessary for preservation. The items were: renew breast beam and replace shaft; renew fantail stage; rebuild fantail gear; refurbish brake mechanism; renew stocks and whips; renew external catwalk.
The appellant’s contentions were that “preservation” means prevention of further deterioration and that the repairs notice was defective as it required works of restoration; to the extent that the repairs notice was invalid, and was a precondition of the use of powers of compulsory purchase, it must follow that there had been no power to make the compulsory purchase order. Although the court below considered the repairs notice defective, the compulsory purchase order was not quashed. The appellant appealed.
Held The appeal was dismissed, as the repairs notice was valid. Although preservation means preventing further deterioration, the point of reference is not just the date of the service of the repairs notice; it is a question of fact and degree and may refer to an earlier date. However, it would be doubtful if a repairs notice would be valid if it referred to a feature of a building that had disappeared before the building in question was listed. The Secretary of State’s view that only some of the steps required by the repairs notice were properly “reasonable steps” was too restricted.
Where there are otherwise valid objections to a repairs notice, these are objections to a compulsory purchase order in respect of which the notice is a precondition. The effect of including invalid steps in a repairs notice, such as the six items in the present case, will not necessarily make the whole notice and the compulsory purchase order founded upon it invalid: it may be invalid only on Wednesbury principles. A notice that contains some defective points may be severable; the local planning authority may have made some mistakes as to the fact and degree in the present notice, but they had not been irrational and the notice was valid. It followed that the compulsory purchase order was valid.
Wandsworth London Borough Council v Winder
[1985] AC 461;
Secretary of State for Education and Science v Tameside Metropolitan Borough Council
[1977] AC 1014;
Thames Water Authority v Elmbridge Borough Council
[1983] QB 570; and
R v Hillingdon London Borough Council, ex parte Publhofer [1986] AC 484.
