Braun v First Secretary of State & Anor [2003] EWCA Civ 665

Case No C1/2003/0030/QBACF[2003] EWCA Civ 665
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION (ADMINISTRATIVE COURT)
(Mr Justice Ouseley)
Venue Royal Courts of JusticeDate Tuesday 20 th May 2003
Strand,
London, WC2A 2LL
Before
LORD JUSTICE SIMON BROWN(Vice-President of the Court of Appeal Civil Division)LORD JUSTICE LAWSLORD JUSTICE LONGMORE
Between
CHRISTIAN BRAUNRespondentFIRST SECRETARY OF STATE & ANOTHERAppellant
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
John Litton Esq (instructed by The Treasury Solicitor) for AppellantChristian Braun Esq appeared in person for in person
JudgmentAs Approved by the CourtCrown Copyright ©

Contraventions:

[1]The respondent (Mr Braun) and his wife own 137 Talgarth Road, London W14 (“the building”), one of a terrace of eight three-storey studio houses known as St Paul’s Studios on the south side of Talgarth Road. They were designed by the architect Frederick Wheeler for bachelor artists and built in 1891. In June 1970 they were listed (ie, added to the List of Buildings of Special Architectural or Historic Interest). Mr Braun and his wife purchased the building in early 2000 and between March and July that year carried out a number of internal alterations to it. Having initially been wrongly advised by consultants that consent for these works was not needed, Mr Braun sought retrospective permission for them by an application for listed building consent received on 10 July 2000. The local planning authority, the London Borough of Hammersmith and Fulham (“the Council”), took no decision on that application but instead laid an information against Mr Braun dated 24 August 2000 alleging that he, between 1 March and 12 July 2000:
“Did cause to be executed works namely removal of wainscoting, infilling of arch and inset cupboard in ground floor front room, renewal and relocation of skirting, fixing of timber floor covering to stairs and cutting of bottom step, for the alteration of a listed building, namely 137 Talgarth Road … which would affect its character as a building of special architectural or historic interest, contrary to section 9(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 [“the 1990 Act”].”
[2]The District Judge on 26 April 2001 dismissed that information but meantime, on 10 November 2000, the Council had served upon Mr Braun a listed building enforcement notice which, as later corrected by the Inspector appointed by the Secretary of State to hear and decide Mr Braun’s appeal, set out the alleged contraventions of listed building control and the steps required to be taken to rectify them respectively as follows: Contraventions: “Front Room, Ground Floor:

Requirements:

[1]Removal of majority of floor skirting made of one piece of timber and affixed directly above the original floor, and its replacement with skirting affixed to the wall so as to accommodate a floating timber flooring cover below, which covers the whole surface from wall to wall.[2]Infilling of recessed arch in southern wall.[3]Removal of recessed display cabinet located on the east side of the arch in the eastern wall and infilling the resulting void.

Middle Room, Ground Floor:

[4]Removal of majority of floor skirting made of one piece of timber and affixed directly above the original floor, and its replacement with skirting made of two horizontal pieces of timber affixed to the wall so as to accommodate a floating timber floor covering below, which cover the whole surface from wall to wall.

Hall, Ground Floor:

[5]Affixing of timber desk to wall.

Rear Room, Ground Floor:

[6]Creation of hole in ceiling. Hall, Ground Floor:[7]As per item 4 above. Internal Staircase from the Ground Floor to the First Floor:

Studio, First Floor:

[8]Installation of new timber flooring screwed to lower section of internal stairs leading to first floor.[9]Cutting away of part of bottom tread of stairs. Studio, First Floor:[10]Installation of a fireplace surround.[11]Removal of timber wainscot boarding.[12]Installation of replacement kitchen; installation of some kitchen units affixed to southern wall.[13]Installation of new strip of wood in window frame of tall leaded light adjacent to eastern wall of front elevation.” Requirements: “Front Room, Ground Floor:[1]Removal of replacement skirting and replacing this with skirting which is made up of a single piece of timber and which is fixed to the wall in its original location in a manner whereby it sits on top of the original timber floorboards.[2]Reinstatement of recessed arch to match original.[3]Reinstatement of recessed display cabinet to match original.

Middle Room, Ground Floor:

[4]As per item 1 above.

Hall, Ground Floor:

[5]As per item 1 above.

Internal Staircase from the Ground Floor to the First Floor:

[6]Removal of timber covering on internal stairs.[7]Making good the bottom tread of internal stairs to match original. Studio, First Floor:

Internal Staircase from the Ground Floor to the First Floor:

[8]Reinstate timber wainscot boarding along eastern wall in its original position and remove item 13 to allow the proper installation of wainscoting.”[3]Mr Braun appealed against that enforcement notice on the grounds set out in s39(1)(c), (e), (g), and (i) of the 1990 Act, essentially to the effect (c) that the alterations were not a contravention of listed building control, (e) that if they were, listed building consent ought to be granted for them, (g) that the requirements of the enforcement notice exceeded what was necessary for restoring the building to its condition before the carrying out of the works, and (i) that the steps required would not restore the former character of the building. Mr Braun understood the enforcement notice to be directed solely to reversing his own works and it was his essential case on the appeal that it was works by earlier owners rather than his works which had damaged the interior of the building, his own works constituting by contrast an improvement on the position he had inherited.[4]Mr Braun appealed also under s20 of the 1990 Act against the Council’s failure to decide his application for listed building consent.[5]The Inspector appointed held an Inquiry which sat for three days in November 2001 and then, by decision letter dated 10 January 2002, dismissed Mr Braun’s appeal and refused his application for listed building consent.[6]Mr Braun then appealed to the High Court(a) under s65 of the 1990 Act against the Inspector’s decision on his s39 appeal against the Council’s enforcement notice and(b) under s63 of the 1990 Act (strictly speaking a statutory challenge) against the Inspector’s decision on his s20 appeal.[7]Ouseley J heard both appeals on 18 October 2002 and, by his reserved judgment handed down on 19 December 2002, allowed them. In accordance with s 65 of the 1990 Act and RSC Order 94 r 13(7) the enforcement notice appeal (the main matter) was thereby remitted to the Secretary of State for re-hearing and determination by him in accordance with the court’s opinion.[8]The Secretary of State now appeals against Ouseley J’s order (a second appeal so far as the enforcement proceedings are concerned) with the permission of Hale LJ. It is the appellant’s contention that the judge below fundamentally misdirected himself in point of law. The owner of a listed building can be enforced against in respect of any unauthorised works undertaken since the building was listed, not merely those carried out during his own occupation of the building. Ouseley J, it is submitted, held (or at least assumed) the contrary.[9]Before the Inspector the Council was represented by their Assistant Head of Legal Services. Before the judge the Council did not appear, the Secretary of State being represented by Mr Forsdick of counsel. Before us the Secretary of State was represented by Mr Litton and we are greatly indebted to him for his most able and helpful submissions. At all three stages Mr Braun has acted in person, and to him too we are grateful for his help.

Studio, First Floor:

[10]Before describing further the course of proceedings to date and the issues now arising it is convenient next to set out the most directly relevant provisions of the 1990 Act:
“7 Subject to the following provisions of this act, no person shall execute or cause to be executed any works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest, unless the works are authorised. … 9(1) If a person contravenes section 7 he shall be guilty of an offence. (2) Without prejudice to subsection (1), if a person executing or causing to be executed any works in relation to a listed building under a listed building consent fails to comply with any condition attached to the consent, he shall be guilty of an offence. … 38(1) Where it appears to the local planning authority - (a) that any works have been or are being executed to a listed building in their area; and (b) that the works are such as to involve a contravention of section 9(1) or (2), they may, if they consider it expedient to do so having regard to the effect of the works on the character of the building as one of special architectural or historic interest, issue a notice under this section (in this Act referred to as a ‘listed building enforcement notice’). (2) A listed building enforcement notice shall specify the alleged contravention and require such steps as may be specified in the notice to be taken within such period as may be so specified - (a) for restoring the building to its former state; … 39(1) A person having an interest in the building to which a listed building enforcement notice relates or a relevant occupier may appeal to the Secretary of State on any of the following grounds - … (b) that the matters alleged to constitute a contravention of section 9(1) or (2) have not occurred; (c) that those matters (if they occurred) do not constitute such a contravention; … (e) that listed building consent ought to be granted for the works … … (g) … that the requirements of the notice exceed what is necessary for restoring the building to its condition before the works were carried out; … (i) that the steps required by the notice for the purpose of restoring the character of the building to its former state would not serve that purpose; …” … (a) that any works have been or are being executed to a listed building in their area; and (b) that the works are such as to involve a contravention of section 9(1) or (2), they may, if they consider it expedient to do so having regard to the effect of the works on the character of the building as one of special architectural or historic interest, issue a notice under this section (in this Act referred to as a ‘listed building enforcement notice’). (a) for restoring the building to its former state; … … (b) that the matters alleged to constitute a contravention of section 9(1) or (2) have not occurred; (c) that those matters (if they occurred) do not constitute such a contravention; … (e) that listed building consent ought to be granted for the works … … (g) … that the requirements of the notice exceed what is necessary for restoring the building to its condition before the works were carried out; … (i) that the steps required by the notice for the purpose of restoring the character of the building to its former state would not serve that purpose; …”
[11]Two central issues arise on this appeal: first, whether the local planning authority can indeed enforce against an occupier in respect not only of his own works but also of all contravening works right back to the date of listing; secondly, whether that is what the Council was intent on doing in this particular case, or at any rate whether by its enforcement notice it properly specified that it was doing so.

Issue 1: against what contravening works can the local planning authority enforce?

[12]The editors of the Planning Encyclopaedia at paragraph L38.04 state:
“There is no limitation period on the issuing of a listing building enforcement notice. Thus the present owner of a listed building may be liable to enforcement action in respect of breaches by his predecessors in title, whenever committed.”
[13]Ouseley J below, however, appears to have decided, or at least assumed, the contrary. That certainly is suggested by the following paragraphs:
“50. It was not in dispute before me that a requirement pursuant to section 38(2)(a) of the 1990 Act for restoring the building to its former state, which cross-refers to the ground of appeal in section 39(1)(i), relates to the state of the building prior to the alterations alleged in the enforcement notice. [So far, so good] 51. It is not concerned with the state of the building at the moment of listing, the timing of which can be quite haphazard, nor with the state of the building when it was originally complete. The same is true of the reference in sections 38(2) and 39(1)(g) to requirements exceeding what is necessary for restoring the building “to its condition before the works were carried out”
. Mr Forsdick’s suggestion that damage post 1970 was neither here nor there is wrong. … 62. The Inspector cannot impose such a replacement requirement consistently with section 38 and dismiss the ground (g) and (i) appeal in relation to the skirting without reaching the prior conclusion that Mr Braun had removed the whole of the skirting and that none had been removed before by previous owners.” …[14]In my judgment, the Planning Encyclopaedia states the position accurately. The power to issue a listed building enforcement notice under s38 of the 1990 Act arises in respect of “works … such as to involve a contravention of s9(1) …” (see s38(1)(b); I need not complicate this exposition by reference also to s9(2)). Section 9(1) is contravened if s7 is contravened. Section 7 is contravened by anyone executing (or causing to be executed, for example by a builder) any relevant unauthorised works. Of course an owner cannot be prosecuted under ss7 and 9 for unauthorised contravening work carried out by his predecessors in title. But s38 is concerned not with prosecution, but rather with enforcement, and enforcement is available against works provided only that they did in fact involve a contravention, whenever and by whomsoever they were carried out. I say whenever: until, of course, the building is listed there can be no contravention by anyone.[15]This has been the position since the concept of listed buildings was first introduced into the legislation in 1957. And, indeed, it would be surprising were it otherwise. In the first place it should be noted that the same position arises with regard to enforcing against breaches of planning control generally, although there is a four-year time limit for enforcing against operational development: within that time limit an owner can be visited with the sins of his predecessors. Secondly, were it otherwise, an owner could all too easily contravene and then transfer the property as altered. True, he would be criminally liable but the local planning authority would then be powerless to enforce the building’s restoration “to its former state” (see s38(2)(a)) ie, its state before the contravening works were carried out.[16]Mr Litton very properly drew our attention to one authority which just possibly could be thought to bear on the issue: Bath City Council -v- Secretary of State for the Environment (1983) 47 P&CR 663, decided under the equivalent provisions of the Town & Country Planning Act 1971 as amended. Enforcement action there was taken against owners who were part-way through re-roofing a listed building using asbestos slates. It was common ground that, prior to their carrying out the works, two-thirds of the roof proportionately had been of natural slates and one third of asbestos slates. The enforcement notice required the owners to replace the asbestos slates they had fixed with natural slates. The Secretary of State on the owner’s appeal had quashed the notice as requiring more work than was necessary to restore the roof to its condition before the unauthorised works were carried out. Woolf J allowed the local planning authority’s statutory appeal to the court on the ground that the Secretary of State could and should have amended the enforcement notice to require the roof to be restored to the condition it was in before the owners’ works began. It is sufficient for present purposes to say that the judgment is silent as to the date when the building was listed and that no-one in the case appears to have considered the possibility of seeking to enforce back to that date. In short, the present issue was simply never raised.[17]It may be, of course, that on occasion the local planning authority will have difficulty in enforcing back to the date of listing. The list description, as in this very case, may say nothing as to the interior state of the building and the authority may have no record whatever of its condition at that time. If this salutary enforcement power is to be fully and successfully exercised in future, therefore, it would seem to me essential that those concerned with listed building control keep rather better records than I understand are kept at present.[18]The other important lesson to be learned from what I hope may be our clarification of the full powers of enforcement available to local authorities in listed buildings cases is that purchasers of such buildings should be most careful to ensure that they are not liable to be enforced against for unauthorised works by their predecessors going back perhaps over very many years. It may be that pre-contract enquiries should be more specifically directed to this risk than has hitherto been the case.

Issue 2: against what contravening works was the Council enforcing here?

[19]It is Mr Litton’s submission that the Council here was indeed enforcing against all the contravening works which had been carried out since the building was listed in 1970. This, he submits, is apparent from the enforcement notice and, he argues, it was on this basis that the Inspector dismissed Mr Braun’s appeal and refused him listed building consent.[20]So far as the enforcement notice is concerned, Mr Litton submits that the contraventions it alleges are to be read together with its requirements and that the repeated reference in the requirements to restoring the building to its “original” condition clearly indicates that the Council was enforcing against all works undertaken since the building was listed.

(i) :

“41. For this ground of appeal to succeed it is for the appellant to show that the steps required by the notice for the purpose of restoring the character of the building to its former state would not serve that purpose. 42. The appellant asserts that the building was uninhabitable when he moved in, and that to return it to that state would be a retrograde step. However, he has produced no evidence to corroborate that statement. One of his witnesses knew the building when it was occupied by its previous owners, but was not able to produce clear evidence that it was uninhabitable, and that to restore it to that state would render it uninhabitable. There was no evidence that the previous owners found it uninhabitable, nor were they called to give evidence to support that view. The requirements seek to reinstate the building to match the original. 43. There is no time limit on the issue of listed building enforcement notices, after the alleged works have taken place, unlike enforcement notices issued under the Town and Country Planning Act 1990, as amended. The requirement is not, therefore, to reinstate it to a claimed but unproved uninhabitable condition, but to its condition before the works were carried out, which is likely to be its condition at the time of listing in June 1970, unless listed building consent has been subsequently granted for alterations. Again, no evidence of poor condition was put to me, and I must therefore rely on the list description, and on the other evidence put to me. 44. The offence under section 9 [of the 1990 Act] is a contravention under section 7 of the Act, that is, executing works of alteration without consent to a listed building. Such works can be carried out at any time after listing, and by any person, whether owner or not. 45. The works required by the Council clearly seek to restore the listed building to its former state, and would serve that purpose. They therefore fully satisfy the law, and in consequence the appeal under ground (i) must fail.”
[21]I confess to having found part of that reasoning somewhat opaque. I am troubled in particular by paragraph 42. If, as Mr Litton asserts, the Inspector was treating this enforcement notice as one directed to all contravening works (ie all unauthorised works post-listing), I fail to see why he was interesting himself at all with the state of the building when Mr Braun moved in and as to whether or not it was then uninhabitable. Why, one wonders, was he not pointing out to Mr Braun that his whole appeal was based on a fundamentally false foundation: that the state of the building when he took it over was quite irrelevant and that the sole and critical question was as to its state on listing in 1970 because it was to this state that Mr Braun was being required by the enforcement notice to restore it. Mr Braun, it is quite apparent, spent all three days of the inquiry under the belief, now said to be mistaken, that it was his own works only against which the Council was enforcing. He tells us, indeed, and I have little difficulty in accepting, that the state of the premises in 1970 (or, indeed, the relevance of 1970 as the date of listing) was simply never discussed.[22]One cannot but notice, moreover, that Mr Forsdick, in his skeleton argument before the judge below relative to the ground (i) appeal, instead of asserting, consistently with the Secretary of State’s present case, that paragraph 42 of the decision letter was in fact completely irrelevant to the decision, re-affirmed its conclusion that “there was no evidence that the previous owners found it uninhabitable”.[23]Mr Litton accepts that the local planning authority would have had to satisfy the Inspector on the balance of probabilities that the works sought to be reversed post-dated the listing of the building. But, he submits, the Inspector here was entitled to proceed on that assumption given that Mr Braun raised no positive case to the contrary - raised, indeed, no ground (b) appeal at all, but argued only that the contravening works did not affect the character of the building as one of special architectural or historic interest (ground (c)).[24]I could understand this argument if Mr Braun ought plainly to have realised that the enforcement notice was directed to reversing all the post-listing works and not just his own, or, indeed, if the Inspector had pointed that out to him and Mr Braun had then not sought to suggest that some of the works may have been undertaken before 1970. I cannot, however, understand or accept it given the case which Mr Braun so clearly thought he was meeting.[25]This brings me back to the enforcement notice itself. As to this I accept Mr Braun’s argument that the only word in the entire notice which might suggest that it was directed to any works other than those which he himself had carried out is the word “majority” in the first alleged contravention, his case being that he was responsible for removing only about one-third of the skirting. There is certainly nothing in the use of the word “original” in the requirements section of the notice to indicate that the Council was seeking to enforce back to the date of listing. “Original” might more readily be thought to relate to the state of the building on its construction in 1891. Failing that, it is no less apt to refer to the condition of the building before Mr Braun’s works than to its condition in 1970. There is, of course, no mention of the date of listing in the notice itself.[26]Given, moreover, that every contravention alleged (save, as just mentioned, for the word “majority”) appears to refer to Mr Braun’s own works - just as the criminal information (see paragraph 1 above) had necessarily had to do - it is hardly surprising that Mr Braun understood the notice from first to last to be directed only at his works and not those of his predecessors in title whom he was blaming for the real damage to the building’s interior. For good measure it may be noted that during the inquiry the Council agreed to delete a number of items from the enforcement notice, in each case because it was satisfied that Mr Braun himself had not been responsible for them. It may be doubted, indeed, whether the Council for its part ever intended this notice to refer to contravening works between 1970 and 2000 (during which period, I observe, they had twice taken enforcement action against Mr Braun’s predecessors: once in 1992 to enforce against the use of the building as offices and then in 1996 in respect of the installation of an exterior steel door to the basement).[27]Be that as it may, I for my part would unhesitatingly hold that the enforcement notice as served was not apt to encompass any works apart from those carried out by Mr Braun himself. Section 38(2) requires that the notice “specify the alleged contravention”. In my judgment it must do so with some real specificity, sufficient at least to put beyond doubt the question of what works are to be reversed. I do not say that it is necessary for the notice to spell out which contravening works have been undertaken by the present occupier and which by his predecessors, still less that his predecessors must be named. But if, as the Secretary of State suggests here, the enforcement notice is intended to reverse all contravening works back to the date of listing, that must be made abundantly plain, something which by no stretch of the imagination was achieved here.[28]In short, I would regard this enforcement notice as at best ambiguous and certainly not apt to shut out the very grounds of appeal which Mr Braun was intent upon advancing but which the Inspector felt able to reject on the basis that Mr Braun was liable to restore the building to its state in 1970.[29]It is on this basis that I would uphold the order below. Even assuming that the legal argument as to the full extent of the Council’s s38 enforcement powers was squarely put to Ouseley J (an argument which, for the reasons already given, he would have been wrong to reject), the actual enforcement notice served here was not such as to allow reliance on contravening works before Mr Braun’s and the Inspector should not have treated it as if it was. The judge, therefore, was right to have quashed the Inspector’s decision on the enforcement notice appeal. Having done so, moreover, he necessarily had to allow the challenge to the refusal of listed building consent which, in part at least, turned on the same consideration as the enforcement notice, namely the extent to which Mr Braun could properly be required to reinstate the building if no consent were given. To the extent that the judge in addition criticised the Inspector for not deciding, in relation to the s20 appeal, all the points of difference between him and the Council (who generally took a less adverse view than the Inspector on certain specific items for which consent had been sought such as some kitchen units), that criticism I would not endorse. This being a complete appeal to the Inspector, his task, it seems to me, was to give his own reasons for the decision, not to contrast his views with those of the Council.

The way ahead

[30]Given that we are dismissing the Secretary of State’s appeal so that this matter will now be remitted to him for his further consideration, I would wish to add just a footnote to what I have already said. There is, of course, power in the Secretary of State under s41(1) of the 1990 Act to “correct” or “vary” the enforcement notice provided only “he is satisfied that the correction or variation will not cause injustice to the appellant or the local planning authority”. I do not know whether it will now be sought to correct or vary this enforcement notice with a view to the Council reversing all the works undertaken by Mr Braun and his predecessors right back to 1970, assuming always that the Council is in a position to establish the condition of the building at that date. All I would say, however, is that any such correction or variation would necessarily result in a further inquiry and that before countenancing this and expressing himself satisfied that it would not cause injustice to Mr Braun, the Secretary of State should plainly have in mind that Mr Braun has already undergone the ordeal of successive proceedings over the last three years and incurred the irrecoverable expense of a three-day Inspector’s inquiry. Given the positive evidence adduced on Mr Braun’s behalf before the Inspector by a number of well qualified architects and others (Professor Rickwert not least), it is surely questionable whether this enforcement notice should now be taken further. Surely the time has come when Mr Braun and the Council can resolve the matter best by some form of compromise agreement.[31]That, however, is for the future. For the present, I would dismiss this appeal.[32]I agree.[33]I also agree. (Order not part of approved judgment)

Cited in 1 later judgment