C & P Reinforcement Ltd, R (on the application of) v East Hertfordshire District Council [2009] EWHC 3128 (Admin)

[2009] EWHC 3128 (Admin)Case No CO/10515/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 16 October 2009
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE SCOTT BAKER
MR JUSTICE CRANSTON
Between
THE QUEEN ON THE APPLICATION OF C & P REINFORCEMENT LTDClaimantv
Between
EAST HERTFORDSHIRE DISTRICT COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Thukral (instructed by Coldham, Shields, Mace) appeared for ClaimantMr Lopez (instructed by Legal Department, East Hertfordshire District Council) appeared for Defendant
J U D G M E N T

Introduction

[1]This appeal by way of case stated raises the issue of the effect of a listed building enforcement notice, specifically whether it can have permanent effect when the time for compliance is a set period. The appellant company was prosecuted by East Hertfordshire District Council ("the council") by way of information in respect of failing to comply with a listed building enforcement notice requiring that witihin a month steps be taken, namely, to retain in a safe and protected manner the remains of the listed building. It appeals against its conviction by the justices on the basis that they misdirected themselves in finding that the obligation was one to retain the listed building at all times until the notice was rescinded. In essence it contends that the legislation does not create an obligation to comply with the requirement of the notice beyond the end of the compliance period. The Background[2]The appellant is the owner of a listed building, The Cottages, Cradle End, Little Hadham, Ware, Hertfordshire. A listed building enforcement notice was issued on 9 August 2006 in respect of that building. In the notice the council alleged that works had been carried out on the building in contravention of section 7 and section 9 (1) of the Planning (Listed Buildings and Conservation Areas) Act 1990. The relevant parts of the notice are as follows:
"3 The breach of planning control alleged Without listed building consent, the partial demolition of the listed building at The Cottages, Cradle End, Little Hadham, Ware, Herts. 4 Reasons for issuing notice The Council consider it expedient, having regard to the effect of the works on the character of the building as one of special architectural or historic interest, to issue this notice. The partial demolition of this listed building seriously harms the historic character and setting of the building and surrounding area contrary to Policy BE16 of the East Hertfordshire Local Plan. 5 What you are required to do Retain in a safe and protected manner the remains of the listed building. 6 Time for compliance 1 month after this notice takes effect. 7 When this notice takes effect This notice takes effect on 11 September 2006 unless an appeal is made against it beforehand."
[3]The appellant did not appeal the notice. It erected scaffolding and put up monoflex. There is no evidence of the state of the building at the expiration period specified in paragraph 6 of the notice. Before the justices that period was taken to be 11 October 2006. There was evidence before the justices from photographs of the state of the building on 20 November 2006 and 4 January 2008.[4]On 5 March 2008 an information was laid. It stated:
"C and P Reinforcements Ltd being the owner of the house adjoining May Cottage, Cradle End, Little Hadham did fail to comply with a notice served on 9 August 2006 by East Hertfordshire District Council under section 38 of the Planning (Listed Buildings and Conservation Areas) Act 1990 requiring that within 28 days steps be taken namely to retain in a safe and protected manner the remains of the listed building contrary to Section 43 of the Planning (Listed Buildings and Conservation Areas) Act 1990 as amended by the Planning and Compensation Act 1991."
[5]The matter was heard by justices for East Hertfordshire in Hertford on 13 to 15 May 2009. They found that it was not in dispute that the house adjoining May Cottage was a Grade II listed building, and that a listed buildings enforcement notice had been issued and properly served on the appellant, who was the owner of the property at the time. They went on to find that the appellant had purchased the listed building in a very delapidated state and had made great efforts to restore it. Specifically, the justices found that - "The building was properly protected for most of the time save that this was not the case on two occasions, 20 November 2006 and 4 January 2008. As such, there has been a failure, on each of these dates, to retain the remains of the listed building in conformity with the listed building enforcement notice." The justices noted section 43 (2) of the Planning (Listed Buildings and Conservation Areas) Act 1990, and then went on to rule that the wording of the listed building enforcement notice in question, in using the word "retained", meant that the remains of the building should have been kept in a safe and protected manner at all times after the end of a compliance period and until the notice was rescinded by the actions of the council. Accordingly, they found that the prosecution had been proved and convicted the appellant.[6]The question for our opinion in the case stated is as follows:
"Were we entitled to find that the obligation under the listed building enforcement notice in question, to retain the remains of the listed building, imposed on the appellant an obligation to retain the remains of the said building following the expiration of the period of compliance?"
The Legal Framework[7]Section 38 of the Planning (Listed Buildings and Conservation Areas) Act 1990 provides for the issue of listed building enforcement notices: "(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 — (a) for restoring the building to its former state; or (b) if the authority consider that such restoration would not be reasonably practicable or would be undesirable, for executing such further works specified in the notice as they consider necessary to alleviate the effect of the works which were carried out without listed building consent; or(c) for bringing the building to the state in which it would have been if the terms and conditions of any listed building consent which has been granted for the works had been complied with. (3) A listed building enforcement notice - (a) shall specify the date on which it is to take effect, and subject to sections 39 (3) and 65 (3A), shall take effect on that date. ..... (5) The local planning authority may - (a) withdraw a listed building enforcement notice (without prejudice to their power to issue another); or (b) waive or relax any requirement of such a notice and, in particular, may extend the period specified in accordance with section 38 (3), and the powers conferred by this sub-section may be exercised whether or not the notice has taken effect.[8]Offences of failing to comply with listed building enforcement notices are set out in section 43 of the Act:
"(1) Where, at any time after the end of the period for compliance with the notice, any step required by a listed building enforcement notice to be taken has not been taken, the person who is then owner of the land is in breach of the notice. (2) If at any time the owner of the land is in breach of a listed building enforcement notice he shall be guilty of an offence. (3) An offence under this section may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under this section by reference to any period of time following the preceding conviction for such an offence."
[9]A number of authorities were advanced on behalf of the appellant. A clear principle is established by the first of these, Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196. That involved an enforcement notice regarding planning permission given for caravan sites. In the course of his judgment Upjohn LJ said of the enforcement notice in that case: "This is a most important document, and the subject, who is being told he is doing something contrary to planning permission and that he must remedy it, is entitled to say that he must find out from within the four corners of the document exactly what he is required to do or abstain from doing. For this is the prelude to a possible penal procedure. It is comparable to the grant of an injunction and it is perfectly plain that someone against whom an injunction is granted is entitled to look only to the precise words of the injunction to interpret his duty" (at 224).[10]A direct application of that principle occurred in Dudley Bowers Amusement Enterprises Ltd v Secretary of State for the Environment (1986) P & CR 365. An enforcement notice was issued to discontinue the use of certain land for the holding of markets and associated car parking on such Sundays that fell within the period of "summer time in any year". The Deputy High Court judge held that the phrase "summer time" was ambiguous, that the ambiguity could not be resolved and thus the notice was a nullity.[11]A different point arose in the other two cases cited on behalf of the appellant: R (on application of Lynes) v West Berkshire District Council [2002] EWHC 1828 (Admin), and Maltedge v Wokingham District Council (1992) 3 PLR 136. Both cases involved section 179 (9) of the Town & Country Planning Act 1990 which provides: (9) An enforcement notice shall specify the period at the end of which any steps are required to have been taken or any activities are required to have ceased and may specify different periods for different steps or activities; and, where different periods apply to different steps or activities, references in this Part to the period for compliance with an enforcement notice, in relation to any step or activity, are to the period at the end of which the step is required to have been taken or the activity is required to have ceased."[12]In Lynes, enforcement notices were served under the Town and Country Planning Act 1990 on an owner of a burial ground. In requiring that the notice identify a period of compliance, Harrison J held that section 179 (9) required that there be a beginning and an end date for compliance. He went on to hold that the notice in that case was bad because it suggested that the notice was to be complied with immediately.[13]Similarly in Maltedge: the enforcement notices related first, to what was alleged to be the breach of planning control, which consisted of making a material change of use to land, namely the hire and storage of plant including earth-moving machinery; and, secondly, an alleged breach of planning control in the erection of offices for use in connection with that plant-hire business.[14]Informations were laid alleging breaches contrary to section 179 (1) of the Town and Country Planning Act 1990. Although periods for compliance were specified in the notice these were no longer applicable because there had been an appeal. The appeals were dismissed and the times for compliance were extended, but the magistrates did not have evidence of what that extended time period was.[15]Mr Justice Laws, at page 139 C of the judgment, said that it was part of the very definition of the offence created by section 179 (1), and also implicit in the terms in which the offence in section 179 (6) was created, that the compliance period must be alleged and proved so that the court could see whether the facts alleged constituted a breach. As a result, the appeal had to be allowed because the magistrates did not have evidence of when the period for compliance expired. The appellant's submissions[16]Before us today Mr Thukral has submitted, on behalf of the appellant, that these notices were a nullity and of no effect. In his submission the duty imposed on the appellant was clear from the terms of the listed building enforcement notice. The appellant was required to take steps to retain in a safe and protective manner the remains of the listed building within the one-month period which began on 11 September 2006. Mr Thukral contended that what the appellant did or did not do subsequent to the expiry of that one-month period was irrelevant to the question of whether it was in breach of its duty under the notice. There could be no breach of duty imposed by that notice on any date after that month period had come to an end. The issue was whether steps had been taken during the period of compliance, namely the one month which began on 11 September.[17]Mr Thukral contended that the justices were purporting to create a further obligation in addition to that set out in the notice. That further obligation required the appellant to retain the remains of the listed building at all times after the end of the compliance period until the notice was rescinded by the actions of the council. In his submission there was no basis for that interpretation. It conflicted with the principle that Upjohn LJ laid down in Miller-Mead, that the notice had to inform a recipient fairly what he had done wrong and what he had to do to remedy it.[18]It was impossible, in Mr Thukral's submission, for the appellant to deduce from the four corners of the document that it was required to retain the remains of the listed building into the future. The plain language of the notice stated that the period of compliance was one month. The effect of the extension of the duty beyond the one-month period of compliance was that that period, as set out in the notice, served no purpose.[19]Mr Thukral continued that the effect of the justices' extension of the duty to retain the remains until the notice was rescinded was a requirement which breached the principle established in Lynes and Maltedge, in that there was no specified period and no clear end date. In his submission, since there had been no rescission of the notice, there was nothing to provide an end date for compliance if the justices were correct. Meaning of the notice[20]In my judgment this enforcement notice makes plain what the appellant is obliged to do. There is no breach of the principle laid down by Upjohn LJ in Miller-Mead. Paragraphs 3 and 4 set out the context. The notice was issued in respect of an identified breach of listed building control, namely the partial demolition of a listed building without the necessary listed building consent. That partial demolition is said to have seriously affected the historic character and setting of the building and surrounding area. Paragraph 5 then obliges the recipient to retain in a safe and protected manner the remains of the listed building. The time in which that obligation is to be satisfied is evident from paragraphs 6 and 7, one month after the notice was to take effect, which was 11 September 2006. There was no appeal, so the period of compliance began on 11 September 2006 and ended one month after that. There is no divergence from the principles set out in Lynes and Maltedge assuming that these decisions, on a different statutory power, apply directly in this case.[21]Thus the listed building enforcement notice contemplated a state of affairs when it was issued. Let me call that state of affairs "X". It required that at the end of the time set for compliance, one month from 11 September, the recipient had to effect a new state of affairs, "Y". In terms of section 38 (2) of the Planning (Listed Buildings and Conservation Areas) Act 1990, that state of affairs - Y - in this type of case could have been the restoration of the building to its former state or the execution of works considered necessary to alleviate the effect of demolition. (It was, of course, the latter). In either event, that new state of affairs, contemplated by section 38 (2) - restoration or alleviation - has to continue into the future.[22]It is, in my view, frankly nonsense to suggest that what happens after 11 October is irrelevant. Section 43 (1) constitutes an offence that at any time after the period for compliance a prosecution can be brought. As my Lord, Scott Baker LJ put in argument, it would be absurd if towards the end of the one-month period the appellant company could take steps to comply with the restoration or alleviation obligation and then, immediately after the expiry of the one-month period, reverse those steps.[23]Mr Thukral sought to avoid the force of Scott Baker LJ's observation by submitting that the apellant had to be in compliance at the beginning of the period, on 11 September, and throughout the following month. The notice was dated 9 August,which gave the appellant time to prepare the works necessary to bring itself into compliance by the beginning of the start date, the 11 September. However, it is clear that that gap between 9 August and 11 September is for other purposes, the service of the notice and giving the appellant the opportunity to appeal. In any event, there is still the logic of Mr Thukral's submission: if correct, the council would need to specify a longer peiod than a month or would need constantly to renew the notice. That I cannot accept.[24]In fact it is after the one-month compliance period that the appellant can be in breach of the notice because it has not brought about the state of affairs, Y. It was given one month from 11 September to do that. When the one-month period expired the appellant had to have brought about the state of affairs as required in the notice. At any time after that period the appellant could be prosecuted if it had not brought about that state of affairs and the notice was extant.[25]There is no real issue about what the appellant had to do under the notice. It had to retain the remains of the listed building after its partial demolition in a safe and protective manner. "Retain" carries its ordinary, natural meaning "to keep in position". The concept has a prospective and continuing quality and does not apply to a single event. The phrase "safe and protective manner" is referable to the clear object of the notice, which sought to preserve the condition of the historic remains of the listed building so as to prevent further irreparable harm.[26]Before the magistrates the director of the company, Mr Coates, gave evidence. He said that there was nothing ambiguous in respect of the requirement of the notice, and that he understood that compliance with the listed building enforcement notice meant ensuring that the remains of the building remained encapsulated and protected. He gave evidence that monoflex was put in place and scaffolding erected. He stated that he was not sure whether at the end of the compliance period he went to check whether the steps required by the enforcement notice had been taken. He confirmed that other measures could have been put in place beside from the monoflex and the erection of scaffolding in order to ensure that the requirements under the notice were complied with. The magistrates' findings[27]In the course of their findings the justices ruled that the requirement under the notice continued in force until any rescission by the council. That question, when the notice ended, was not itself central to their conclusion. The crucial question was whether the justices were able to convict with regard to the findings of fact they made, the notice, the information and the legislation.[28]The justices did not specifically find that there had been compliance with the requirement of the notice at any time during the period for ensuring compliance or after. They made no finding that the appellant had ever performed works during that compliance period which amounted to retaining the remains of the listed building in a safe and protective manner for the purposes of the notice. Nor did they expressly find that there had been compliance with the requirement under the notice at any time after that, prior to the first identified date of non-compliance, namely, 20 November 2006. What they said was was that the building was properly protected most of the time save for two occasions, 20 November 2006 and 4 January 2008. But compliance requires compliance at all times. On 20 November 2006 and on 4th January 2008 the notice remained in effect. As the justices found, there was no compliance with the requirement on either of those dates.[29]The question posed by the magistrates in the case stated must be answered in the affirmative.[30]I would dismiss this appeal.

LORD JUSTICE SCOTT BAKER: I agree, and I too would answer the question posed in the affirmative.

[32]MR LOPEZ: There is an application for costs on behalf of the local authority. The sum is £4,125.[33]MR THUKRAL: I cannot resist the principle. I have no observations.

LORD JUSTICE SCOTT BAKER: No observations about the amount.

[35]MR THUKRAL: The substantial amount is counsel's fees. This is a relatively straightforward construction point. It is perhaps on the high side but I have not a strenuous objection.

LORD JUSTICE SCOTT BAKER: We agree that you should have your costs and we assess them in the sum put forward - £4,125.