Bello, R (on the application of) v Lewisham [2003] EWCA Civ 353

Case No C1/2002/1341

[2003] EWCA Civ 353

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT

(MR JUSTICE SILBER)

Venue Royal Courts of Justice

Date Friday, 21 February 2003

Strand

London, WC2

B E F O R E:

LORD JUSTICE SCHIEMANN

LORD JUSTICE KEENE

Between

THE QUEEN ON THE APPLICATION OF BELLOAppellant

-v-

Between

LONDON BOROUGH OF LEWISHAMRespondent

(Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street, London EC4A 2AG

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The Appellant appeared in person for in person

MR C BOYLE (instructed by London Borough of Lewisham, Legal Services, London SE6) appeared for Respondent

J U D G M E N T

(Approved by the Court)

Friday, 21 February 2003

LORD JUSTICE SCHIEMANN:

[1]Mr Bello sought judicial review of a decision of the Council to enforce a demolition notice served under section 36 of the Building Act 1984 requiring him to remove a rear extension made to premises at 46 New Cross Road in London. The extension had been built in 1988 without obtaining the appropriate permissions under the Planning Acts and the Building Act Notice was served that year.

[2]The decision which is under attack in the present proceedings was preceded by a letter to Mr Bello, dated 9 March 2000, which refers to the Building Act Notice, and continues:

"In view of the continual nuisance emanating from the Building the Council are now 'minded' to enforce the terms of the original Notice served under Section 36 of the 1984 Building Act. The matter will therefore be considered at the Council's Executive Committee in early April of this year."

That letter elicited a reply from Mr Bello, dated 15 March 2000, in which he sets out a variety of points, including the fact that there was in his view:

"... no nuisance emanating from the building, the sole use of which is for worship as a church. It is now well over ten years since the back addition was erected hence such a demolition is statute-barred. I have no further views to put forward to the Committee as the Council would be breaking the law again should such demolition order be pursued after ten years."

[3]The officers of the Council in due course prepared a report for a committee which was going to meet on 5 April. That report contains the following:

"Purpose of the Report To advise the Committee of the current situation with regard to a property situated at 46 New Cross Road. An extension was constructed in 1988, which was illegal in respect of the 1984 Building Act and the 1971 Planning Act. The use of the main building and the extension has caused problems to adjacent residents for a number of years and is currently the subject of an ombudsman's complaint against the Council. This report concerns action the Council could take to alleviate some of these concerns."

Under the heading "Policy Context", the writer states:

"It is Council Policy to ensure the Building Acts & Building Regulations are correctly applied. This particular addition to the building has been erected with complete disregard for almost every regulation specified in the legislation. In particular, the building has inadequate fire precautions and no provision for thermal insulation. The use of this illegal extension currently involves a form of religious gathering. Its location is unsuitable for these activities and numerous complaints have been received from occupants of adjacent properties concerning the high levels of noise that are generated. It is Council policy to reduce as far as possible the amount of unreasonable noise suffered by residents. Removing this structure would greatly assist this objective."

It is then recommended that the owner of the building be advised that the Council intend to enforce the Building Act Notice. The background to the matter is then set out both under the Building Acts and the Planning Acts and the position appears to have been that various resolutions were passed in the late 1980s but no action was taken on them. The writer of the report says:

"Regrettably, no such action was ever taken. Due to time constraints it is not now possible to take action under planning legislation. In Building Control terms (which is the main concern of this report) the situation is rather different."

It then sets out that the notice was served, it was not complied with; an appeal was made, it was unsuccessful; there was a judicial review in 1990 when the owner's arguments against the serving of the Building Notice were finally rejected. The writer of the letter says:

"There was therefore no legal reason why the Council could not undertake the demolition of the structure. The Head of Building Control at the time therefore instructed the Council's dangerous structure contractor to demolish the structure. They arrived on the site on the 8 May 1990. Mr Bello was on site with several workmen. He stated that they were about to demolish the structure and that the Council's action was unnecessary. The Council's contractors were withdrawn and did not return."

Then it is said that no further action was taken in terms of Building Act enforcement, and that the reason for such decision is not clear. The letter continues:

"The situation then remained relatively 'dormant' for a number of years although there were complaints about the nuisance being caused. This culminated at the early part of this year with a complaint to the ombudsman over the Council's inaction. It was felt that the Council did not have a realistic defence against the allegations. However, it was decided to re-visit the situation with regard to Building Act enforcement."

Then it is recorded that the Council said that such action could be taken. There are then various references to legal considerations: the Human Rights Act, and then a reference to environmental implications:

"The existing structure is an eyesore and a nuisance and there is no doubt that the local environment will be considerably improved by its removal. In time it is likely to deteriorate to being an actual risk to public safety, it is in the Borough's best interests for it to be removed."

In due course that report led to the resolution now under attack; namely, that the owner of the building be advised that the Council intend to enforce the notice served on the property in 1988, and that the owner be told that if the structure is not removed within a specified period, the Council will take action in default.

[4]It is the decision to enforce the notice which is under attack in these proceedings. That decision was not made until April 2000 - 12 years after the notice was served. The first two years of that gap in time was occupied by various matters, including an unsuccessful appeal against the notice itself. However between 1990 and 2000 the Council did not do very much and the building, including the extension, was used for a variety of purposes, latterly as a church. This involved a certain amount of noise which irritated the neighbours. They complained to the Council. The Council said there was nothing it could do. They complained to the Ombudsman, he said that there were things which the Council could do. The Council found out that they could still enforce the demolition order and so they resolved to do so. That led to Mr Bello trying to start new judicial review proceedings against the Council. He has formulated these himself because he has acted throughout in person, and he has addressed us with skill and moderation. But - and it is no criticism of him - the way he formulated his judicial review proceedings lacks the clarity which in principle defendants to judicial review proceedings are entitled to expect. The grounds on which relief is sought are set out at page 14 of his bundle and are in the widest possible terms and lack any degree of the specificity so far as the present complaints are concerned. His main point in that notice was one of lapse of time. But there were a number of other grounds hinted at.

[5]There was an application for permission to move for judicial review, which was refused by Richards J in July 2000. Mr Bello appealed against this refusal. Otton LJ heard that appeal and gave a reasoned judgment suggesting that some of Mr Bello's complaints were not ones that were sensibly arguable. But he concluded this way:

"However, that is not the end of the matter. It is in my judgment arguable that it was unreasonable to revive the power to demolish after such a great delay and that section 36 notices, like compulsory purchase notices, should not hang over properties indefinitely. ... On that limited basis I am prepared to grant permission to appeal."

This he did. But the order which was drawn up by the associate and then, judging by its face, amended pursuant to a direction of Otton LJ a month later, reads as follows:

"IT IS ORDERED THAT the claimant's renewed application herein sealed on 2nd August 2000 be granted, and the matter be remitted to the Administrative Court for hearing."

This was unfortunate in some ways because it does not specifically refer to the very limited basis upon which Otton LJ gave permission to appeal.

[6]The matter went back to the Administrative Court for hearing and it was Silber J dealt with the matter. Silber J in his judgment made it clear that he was not prepared to let Mr Bello range wide and far in relation to all the claims of mal-practice that he wished to pursue against the Council. Issues which were ruled out by Silber J included allegations of bias, misfeasance in public office, procedural impropriety, unfairness and a failure to notify him of the date of the meeting at which the Council's decision was made or to invite him to attend that meeting. Silber J recorded that the claimant has sought to argue those points in front of him, notwithstanding that application for permission to do so was refused by Otton LJ.

[7]It was, I think, I who first discovered on reading the papers in this case that the actual order of Otton LJ does not reflect his clear intention. That point appears not to have been in issue before Silber J and I am satisfied that had that formal point been raised by Mr Bello then there would have been a formal answer to it, namely an application to Otton LJ once more to amend the order under the slip rule, and I have no doubt whatever that he would have amended it in such a way as to limit the permission in accordance with what he expressed in his written judgment.

[8]So one is left with the limited basis upon which Silber J approached the matter. In my judgment the judge was right so to do. When Mr Bello appeared in front of me in person I granted him permission to appeal without having fully appreciated that background. There appeared to me to be two points which were arguable: one relating to the lapse of time between the serving of the demolition notice in 1988 and the decision to enforce it in 2000; and the second was an argument to the effect that the Council's motivation in deciding to enforce the Enforcement Notice was not a desire to pursue its duties under the Building Act, but rather an extraneous desire. I mentioned two possible extraneous desires: one was a desire to put an end to what some of the neighbours regarded as a noise nuisance; and the second was a possible desire to punish Mr Bello for having complained to the Ombudsman. I should record that the Ombudsman point had not been urged by Mr Bello, and it occurred to me as I was giving judgment. As expressed by me it is misconceived as a matter of fact. It was not Mr Bello, but the neighbours who had complained. At best it could have been reframed as a desire to appease the Ombudsman. It has not been pursued in front of me, and I see no reason why it should have been.

[9]The appeal has two bases. The first one was was the delay point. Mr Bello relies on the long delay before us as he did before Silber J. Silber J (reported

[2002] EWHC 1332 (Admin)

) dealt with the matter with great care. He records that there had been no allegation of any particular prejudice caused to the claimant by delay. He came to the conclusion that in spite of the long delay there was no reason why this notice should not now be enforced. Mr Bello relied on Grice v Dudley Corporation

[1958] Ch 329

, which was a case where a Notice to Treat had been served pursuant to a compulsory purchase order in 1939. War had then broken out, nothing much had happened, and finally long after the war the plaintiff feared that the Council might proceed on the basis of the Notice to Treat, and so the plaintiff brought an action for a declaration that the Notice to Treat was no longer valid and effective, it being admitted by the corporation that their plans to develop, although not yet finalised, did not include the matters for which they had originally been authorised to purchase the property. That declaration was made. The Council say, and Silber J agreed, that there are differences between Grice and the present judicial review application. The first is that in Grice the purpose of the attempts to revive the compulsory purchase order was substantially different from that set out in the order, while in this case the purpose of the present attempt by the Council to enforce the demolition notice was the same as the purpose for which it was originally granted. Other matters were relied upon. In particular, that in Grice there was an intention on the part of the body that served the notice to abandon it.

[10]In my judgment so far as the lapse of time point is concerned, Silber J was correct. The Council did let the matter drag on for a very long time, but meanwhile no prejudice, as in the end was admitted by Mr Bello, was suffered by him. I accept of course what he says, namely that there is a general prejudice to the community which likes worshiping in that church and which will be distressed no doubt to have to move, unless Mr Bello obtains permission to construct a building which complies with the appropriate building regulations, a task for which he tells me he feels he is now rather old. While sympathising with him I do not consider that there is anything unlawful in the circumstances of the present case in the Council proceeding to enforce the notice which they have passed so far as time is concerned.

[11]So far as improper motive is concerned the matter has been developed before us in much the same way as I have already indicated. I have some doubt as to whether it is at all proper in the light of the history for this court now to deal with the improper motive point at all. I say that because of the limited permission given by Otton LJ, which has this effect: that Silber J in principle, certainly if the order had been drawn as intended by the learned Lord Justice, would not have had jurisdiction to consider improper motive. The position is slightly muddled because of the way that the order was drawn. However, even assuming that we had jurisdiction, I am, on reflection, not persuaded that the point is a good point. There were objections under the Building Acts to what was proposed. The appeal against the notice as such was rejected. The notice stands as a good notice, and therefore one must work on the basis that there are Building Act objections to be made to it. The Council then having made such notice has to decide when and whether to enforce it. As my Lord pointed out, sometimes the wind is tempered to the shorn lamb and notices are not enforced straightaway. As I fully accept on the other side, it can occur that somebody changes his position as a result of indications that a notice will not be enforced. But the present case is not one where the applicant can show that he has been disadvantaged by this lapse of time or has acted in such a way that it would be unjust to allow the Council to enforce it.

[12]It does seem to me legitimate for the Council to take into account in deciding when to activate the notice, various other matters such as hardship to the appellant or such as hardship to the neighbours arising from the building under discussion. Of course Mr Bello feels that hymns and songs emanating from a building should be a cause of joy, not a cause of irritation from his neighbours. It sometimes happens in villages that church bells are rung and some people like the bells and other people do not. But I am persuaded that the Council is in principle entitled to take public reaction into account when it comes to the timing of enforcement proceedings. Therefore on that basis, as it seems to me, this application for judicial review was rightly dismissed by Silber J, and I would dismiss this appeal.

LORD JUSTICE KEENE: I agree. (Application refused; appellant do pay Respondents's costs, such costs to be assessed if not agreed; application for permission to appeal to the House of Lords refused).