Swindon Borough Council v Forefront Estates Ltd
Local authority – Dangerous building – Sections 77 and 78 of the Building Act 1984 – Claimant council carrying out works to render building safe – Claimants seeking to recover cost of repair works – Whether claimants’ proceedings under correct statutory provision – Whether costs reasonably incurred – Claim allowed
The defendant was the freehold owner of a Grade II listed building, located in a historically important conservation area of Swindon, which included a theatre at the northern end and a library at the southern end of the building. The building had not been used for its original purpose for many years and had not been properly maintained.
In November 2009, a group of consultants prepared a schedule of urgent works to be carried out on the building to make it safe. The claimant council served on the defendant an urgent works notice pursuant to section 54 of the Planning (Listed Buildings and Conservation Areas) Act 1990. In July 2010 the claimants obtained an order from the magistrates’ court to allow them access to the building to carry out the works under section 54 of the 1990 Act.
The claimants subsequently sought to recover the costs incurred in carrying out the works under section 78 of the Building Act 1984. The defendant argued that the claimants were not entitled to recover the sums under section 78 because they might reasonably have proceeded under section 77(1) which provided for the claimants to apply to the court for an order requiring the owner to deal with the dangerous building.
The defendant also put the claimants to proof that the works were necessary to render the roof of the building safe and that the costs were reasonably incurred.
Held: The claim was allowed.
(1) Both sections 77 and 78 applied where a building or structure, or part thereof, was in a dangerous state or condition. The difference between the provisions was that, under section 78, there was an additional requirement that immediate action should be taken to remove the danger. Section 78(2) required the council, if it was reasonably practicable to do so, to give notice to the owner of the building.
Section 77(1) applied where there was a dangerous building or structure but it was not necessary to take immediate action. In such circumstances the council had to apply to the magistrates court for an order. If the owner failed to comply with that order within the time specified, the council was entitled to execute the necessary works and recover the expenses from the owner.
In the present case, there was no doubt, on the evidence, that the structure of the theatre roof was in a dangerous state or condition due to its deteriorating nature and overall condition.
(2) The distinction between sections 77 and 78 showed that the dangerous state or condition of a building did not, in itself, justify a council taking emergency measures under section 78. In deciding whether to proceed under section 78, rather than section 77, the council needed to consider the risks in terms of the consequences of the dangerous state or condition of the building or structure, the likelihood of those consequences occurring and the seriousness of the situation if those consequences occurred.
In this case, the claimants had identified the key risks as being the collapse of the theatre roof and resultant asbestos contamination. On the evidence, including the written and oral evidence of the witnesses, it was clear that the dangerous state of the roof was likely to lead to the roof collapsing, releasing asbestos and lead contamination into the atmosphere and causing masonry to fall outside the boundary of the building. The risk of that happening was high and the consequences for the health and safety of people in the vicinity would have been serious, giving rise to potentially serious injury or death. In those circumstances, it was necessary for the claimants to take immediate action. This was not a case where the claimants might reasonably have proceeded under section 77(1) of the 1984 Act, instead of section 78.
(3) Under section 78(3), the claimants might recover from the defendant the expenses reasonably incurred. An indication of what work might be included was given in section 78(4) which provided that, insofar as the expenses incurred consisted of the cost of fencing off the building or structure or arranging for it to be watched, those expenses were limited and not recoverable for any period after the danger had been removed. In all the circumstances the claimants were entitled to recover the sum of £331,242.69 plus interest under the Building Act 1984.
(4) As from the date of the completion of the works, the expenses and interest accrued due thereon were, until recovered from the owner, a charge on the premises and on all estates and interests in them under section 107 of the 1984 Act.
Such a charge was a local land charge within section 11A of the Local Land Charges Act 1975 as it was a charge acquired by a local authority under the Building Act 1984. Accordingly, the appropriate way of dealing with the enforcement of the judgment in respect of the expenses and interest was by the registration of a local land charge. Any enforcement of sums due in respect of costs had to be through the usual procedure for the enforcement of any judgment. If the costs were not paid within the usual 14 day period, the claimants could apply for an interim charging order.
Alan Steynor (instructed by the Director of Law and Democratic Services, of Swindon Borough Council) appeared for the claimants; the defendant did not appear and was not represented.
Eileen O’Grady, barrister
Local authority – Dangerous building – Sections 77 and 78 of the Building Act 1984 – Claimant council carrying out works to render building safe – Claimants seeking to recover cost of repair works – Whether claimants’ proceedings under correct statutory provision – Whether costs reasonably incurred – Claim allowed
The defendant was the freehold owner of a Grade II listed building, located in a historically important conservation area of Swindon, which included a theatre at the northern end and a library at the southern end of the building. The building had not been used for its original purpose for many years and had not been properly maintained.In November 2009, a group of consultants prepared a schedule of urgent works to be carried out on the building to make it safe. The claimant council served on the defendant an urgent works notice pursuant to section 54 of the Planning (Listed Buildings and Conservation Areas) Act 1990. In July 2010 the claimants obtained an order from the magistrates’ court to allow them access to the building to carry out the works under section 54 of the 1990 Act.The claimants subsequently sought to recover the costs incurred in carrying out the works under section 78 of the Building Act 1984. The defendant argued that the claimants were not entitled to recover the sums under section 78 because they might reasonably have proceeded under section 77(1) which provided for the claimants to apply to the court for an order requiring the owner to deal with the dangerous building. The defendant also put the claimants to proof that the works were necessary to render the roof of the building safe and that the costs were reasonably incurred.
Held: The claim was allowed. (1) Both sections 77 and 78 applied where a building or structure, or part thereof, was in a dangerous state or condition. The difference between the provisions was that, under section 78, there was an additional requirement that immediate action should be taken to remove the danger. Section 78(2) required the council, if it was reasonably practicable to do so, to give notice to the owner of the building. Section 77(1) applied where there was a dangerous building or structure but it was not necessary to take immediate action. In such circumstances the council had to apply to the magistrates court for an order. If the owner failed to comply with that order within the time specified, the council was entitled to execute the necessary works and recover the expenses from the owner.In the present case, there was no doubt, on the evidence, that the structure of the theatre roof was in a dangerous state or condition due to its deteriorating nature and overall condition. (2) The distinction between sections 77 and 78 showed that the dangerous state or condition of a building did not, in itself, justify a council taking emergency measures under section 78. In deciding whether to proceed under section 78, rather than section 77, the council needed to consider the risks in terms of the consequences of the dangerous state or condition of the building or structure, the likelihood of those consequences occurring and the seriousness of the situation if those consequences occurred.In this case, the claimants had identified the key risks as being the collapse of the theatre roof and resultant asbestos contamination. On the evidence, including the written and oral evidence of the witnesses, it was clear that the dangerous state of the roof was likely to lead to the roof collapsing, releasing asbestos and lead contamination into the atmosphere and causing masonry to fall outside the boundary of the building. The risk of that happening was high and the consequences for the health and safety of people in the vicinity would have been serious, giving rise to potentially serious injury or death. In those circumstances, it was necessary for the claimants to take immediate action. This was not a case where the claimants might reasonably have proceeded under section 77(1) of the 1984 Act, instead of section 78.(3) Under section 78(3), the claimants might recover from the defendant the expenses reasonably incurred. An indication of what work might be included was given in section 78(4) which provided that, insofar as the expenses incurred consisted of the cost of fencing off the building or structure or arranging for it to be watched, those expenses were limited and not recoverable for any period after the danger had been removed. In all the circumstances the claimants were entitled to recover the sum of £331,242.69 plus interest under the Building Act 1984.(4) As from the date of the completion of the works, the expenses and interest accrued due thereon were, until recovered from the owner, a charge on the premises and on all estates and interests in them under section 107 of the 1984 Act. Such a charge was a local land charge within section 11A of the Local Land Charges Act 1975 as it was a charge acquired by a local authority under the Building Act 1984. Accordingly, the appropriate way of dealing with the enforcement of the judgment in respect of the expenses and interest was by the registration of a local land charge. Any enforcement of sums due in respect of costs had to be through the usual procedure for the enforcement of any judgment. If the costs were not paid within the usual 14 day period, the claimants could apply for an interim charging order.
Alan Steynor (instructed by the Director of Law and Democratic Services, of Swindon Borough Council) appeared for the claimants; the defendant did not appear and was not represented.
Eileen O’Grady, barrister
