England and Wales Court of Appeal (Civil Division) Decisions

CASE NO: CCRTF 1999/1202/C
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PETERBOROUGH
COUNTY COURT
ROYAL COURTS OF JUSTICE
STRND, LONDON WC2A 2LL
Tuesday 28 MARCH 2000

Lord Justice Judge:
This is an appeal from the decision of Judge de Mille at Peterborough County Court on 4th October 1999, on the hearing of a preliminary issue, that the court was vested with jurisdiction to hear and adjudicate the claim made against the defendants by Fenland District Council (the Council), the local planning authority for Whittlesey. The defendants are developers who own the freehold of land at 15-21 Market Street Whittlesey, which include, or included, 17th century buildings at 19 and 21 (otherwise known as 19a) Market Street. These two buildings appear on the 38th List of Buildings of Special Architectural or Historic Interest as at 22nd February 1985.
In 1988 applications for planning permission and listed building consent were refused. The developers appealed, but in October 1989, just before the appeal was to be heard, fresh applications were made. Shortly afterwards, in November, planning permission, and in December conservation area consent and listed building consent were granted. The appeals were withdrawn.
In August 1993, after implementation of the conservation area consent in 1990, applications were made for revised planning permission and listed building consent (F/93/0484/LB). The Council issued an amended listed building consent on 3rd November, and on 16th November granted amended planning permission. The developers had complied with all the relevant procedural requirements imposed on them. Neither application was marred by any form of irregularity on their part. The planning officer was positive. His consideration of the listed building consent recorded:
"I am satisfied that the best interests of the listed building are accommodated in the proposal and I am also of the opinion that the current scheme is an improvement in this respect over the previously agreed development."
Unfortunately the Council failed to notify the Secretary of State of this application for listed building consent, an obligation imposed by s13(1) of the Planning (Listed Buildings & Conservation) Act 1990. This present litigation is the direct consequence of that mistake, which remained undiscovered for four years or more.
In August/September 1997 the validity of the 1993 listed building consent was raised at a meeting between the Council's conservation officer, and representatives of the developers. An application for building regulation approval was made, in September 1997, and, following a site meeting, was granted.
In the summer of 1998 things moved fairly rapidly. After discussions between the Council and the developers, on 26th June, the Council wrote formally advising the developers "that the purported grant of listed building consent is void ....... You do not have a valid listed building consent capable of implementation in respect of the works which you intend to carry out. Any further works .......... will therefore constitute an offence liable to prosecution proceedings". Although the developers were advised to seek their own legal advice, it is fair to them to notice that this letter should have been much more specific about the reasons which led the Council to assert that a long standing listed building consent was void. This letter did not encourage a co-operative response, and it did not receive one.
It was immediately described by the developers as "grossly improper". Mal administration was alleged. There was a request to the Council to withdraw the letter, or "otherwise justify it", or the matter would otherwise be referred to the Ombudsman. The letter went on
"The impropriety of your letter amounting to mal administration lies in the failure to disclose the nature of the alleged invalidity and the threat of prosecution for some undisclosed alleged offence. This is unjustified intimidation which itself may amount to a criminal defence. At the very least, it is monstrous conduct on the part of a public body, which is clear mal administration."
That letter was followed up next day by a letter which included the following passage
"A threat of prosecution made by a private citizen without cause may be described as blackmail and it is regrettable that a public authority should act in this matter."
The writer sought clarification of the basis for the Council's request that work should cease.
On 2nd July the Council asserted that there were "constraints" in what could be said. Nevertheless it was asserted that the "listed building consent purported to be granted in 1993, is void. This advice clearly has some drastic implications both for yourself and for the Council".
The letter went on to ask for co-operation in ensuring that no works would be carried out which might affect the listed building.
It was not until 21st July that the Council explained that they had failed properly to refer the application for listed building consent to the Secretary of State and for this reason the consent was void. The letter went on to see how the problem could be unravelled. A number of suggestions were put forward. The Council promised to deal with the matter as quickly as possible, but only within the context of the "proper statutory process".
Further proposals then followed from the Council. On 31st July the developers rejected the suggestion that the consents were invalid. The tone of the letter is readily established by these extracts
"I am satisfied that the planning permission and listed building consent are wholly valid and they have been implemented by us .....
In the circumstances I am advised that the Council is in no position to challenge the validity of the consents and they cannot do so......
Accordingly I write to tell you that we are proceeding with the work on these properties and any prosecution, will, of course, be strenuously resisted. If the Council were minded to seek an interlocutory civil injunction, we shall insist that the usual undertaking as to damages be given."
On 4th August the Council responded by noting that rather than take up the invitation to seek some agreement on the appropriate way forward, ......
"instead you make clear your intention to proceed with the development including demolition of the listed buildings ..... I will now be taking the necessary steps to obtain an injunction to protect the listed building. I would have much preferred your co-operation in not carrying out any unauthorised works ...... In view of the contents of your letter the Council is reluctantly forced into taking legal actions...... Should your intentions have changed and/or if you are able to let me have an undertaking that you will not proceed with the development, please contact me without delay."
At Peterborough County Court the Council was granted a restraining ex parte injunction. On the same day, the developers suggested that they would be willing to defer further work until 10th August but that an injunction would be resisted "for the reasons previously indicated".
On 7th August, inter partes, on the Council's undertaking in damages, this injunction was ordered to continue until trial.
The Council were seeking, first, an injunction to restrain the defendants from carrying out any work of demolition, alteration, or extension of the properties at 19 and 21 Market Street, prior to "such consent as may hereafter be granted", and second, a declaration that the listed building consent issued by them on 3rd November 1993 was void, and of no effect. The basis of these applications was simple. The listed building consent had not been properly notified to the Secretary of State in accordance with the statute. The local planning authority could not and should not have granted listed building consent. The work threatened by the developers was not supported by the required statutory authorisation. Accordingly it would contravene s7 of the 1990 Act.
The single issue argued before Judge de Mille was whether the court had jurisdiction to grant the injunction sought by the Council. He held on this narrow point that s44(A) of the 1990 Act provided the necessary jurisdiction. That was all that he was required to decide. It is the only point for decision in this appeal.
For the sake of completeness however I should note that the judge did not decide how the discretion to grant an injunction should be exercised, and ended his judgment by pointing up that it was "by no means a foregone conclusion that the discretion ..... will be applied in favour of the local authority. The balance of convenience at present may well lie against them. If that were to be the case, again it will have the consequence that both parties would be left in limbo, which would be unsatisfactory".
On their respective instructions counsel are in dispute about whether or not the listed building consent had been implemented at all before 5th August. That may have some significance if any question of disobedience to the injunction were to arise, but for present purposes needs no further investigation. What is clear is that when the Council became aware of the failure to notify the Secretary of State the validity of the consent was called into question. Having criticised the Council for the failing at the outset to explain the reasons for its concern about the validity of the consent, I should add that it is a matter of commendation that no attempt was made to ignore or indeed sweep aside the error. There was no acceptable way of avoiding disclosure. Naturally the developers were irritated at the incompetence which had led to the error, the absence of an immediate explanation of the reasons why the consent was invalid, and no doubt the infuriating interference with their plans. Whatever the reason they had responded in unequivocal terms that the work would continue at the listed building, work which the Council believed to be unauthorised.
Accordingly, by 4th August the Council had to act. They could not ignore the threat that a listed building would be significantly and irremediably altered on the basis of an authorisation which appeared to be invalid. The developers had shown no interest in a negotiated attempt to find a solution to the problem. So the Council had to take the matter to court, a step not to be taken lightly, but if to be taken at all, to be taken quickly and brought before the court with jurisdiction to provide protection most rapidly for the threatened building.
S44A(1) of the 1990 Act provides
"Where a local planning authority considers it necessary or expedient for any actual or apprehended contravention of s9(1) ..... to be restrained by injunction, they may apply to the court for an injunction, whether or not they have exercised or proposing to exercise any of their other powers under this Part.
(2) On an application under sub section (1) the court may grant such injunction as the court thinks appropriate for the purpose of restraining the contravention.
(5) In this section `the court' means the High Court or the County Court."
S9 criminalises a contravention of s7 of the Act, which in summary prohibits the alteration or extension of a listed building "unless the works are authorised". These are so authorised if consent has been granted by the local planning authority or the Secretary of State and the works are executed in accordance with the terms of the authorisation. That consent may not be granted by the local planning authority unless the Secretary of State has been notified. (s13)
The statutory language is straightforward. Judge de Mille thought it applied to this situation. Mr Barry Payton for the developers submitted that he was wrong.
His main submission was that by taking proceedings in the Peterborough County Court the Council had failed to observe the principle adumbrated in O'Reilly & Others v Mackman & Others [1983] AC 237, and summarised in the headnote which reads:
"Since all the remedies for the infringement of rights protected by public law could be obtained on an application for judicial review, as a general rule it would be contrary to public policy and abuse of the process of the court for a plaintiff complaining of a public authority's infringement of his public law rights to seek redress by ordinary action and that, accordingly, since in each case the only claim made by the plaintiff was for a declaration that the board of visitors' adjudication against the plaintiff was void, it would be an abuse of the process of the court to allow the actions to proceed and thereby avoid the protection afforded to statutory tribunals."
Accordingly Mr Payton argued that the Council should have sought judicial review of the grant of listed building consent in 1993. Injunctive relief under s44A was not available to call in question the validity of this administrative act.
It would be pointless to attempt to add to or explain the principles in O'Reilly v Mackman as they have developed in the authorities after 1983, or to recite the various authorities which were drawn to our attention both in the written and the oral arguments. In my judgment Mr Payton's submission is unsound. It ignores the clear language of s44A. The power to order an injunction when material damage is about to be done to a listed building through unauthorised works is expressly extended to the County Court. There is nothing to suggest that the remedy provided by s44A may not be deployed merely because the potential damage to the building, or the unauthorised works, may originally stem from an error or oversight by the planning authority which purported to grant the necessary authorisation. Neither contributory negligence nor administrative incompetence by the Council precludes this application. The purpose of the legislation is to protect listed buildings from unauthorised work, whether or not this may create embarrassment or difficulty for the Council. Having discovered the error, even at the very late stage that it did, the Council was entitled, indeed bound to act, and if the developers intended to proceed with unauthorised works, it was not an abuse of the process of the County Court for the Council to seek to persuade the court to exercise its protective jurisdiction. That is precisely what the Council reasonably anticipated. Criticism of the Council's conduct falls to be considered not on the question of primary jurisdiction but on the separate question whether the court should exercise its discretion to grant an injunction.
Mr Payton suggested that the validity of the consent could not be called into question in the County Court. It was agreed by both counsel that the County Court did not have jurisdiction to make any relevant declaration. That, Mr Payton submitted, served to demonstrate that this was an issue for decision in judicial review proceedings, which provide the proper basis for examining the administrative actions of public authorities. It was not clear how Mr Payton anticipated that the Council would deal with its own delay since 1993, when the listed building consent was purportedly authorised, nor quite how the Council would be able to persuade a judge sitting in the Crown Office to grant a declaration that it was in error, when the essential question was not whether an error had been made - as the Council readily accepted - but whether the developers were entitled to proceed with the works. The Council was not challenging its public law decision. It simply apprehended contravention of s9(1) of the Act. In reality judicial review could not have provided an effective and immediate remedy, and given the jurisdiction provided by s44A an application would also have failed on the ground of a clear alternative remedy.
In fact, by the time Judge de Mille came to make his decision it was accepted that the Council had indeed failed to comply with the obligations under s13 of the Act. Although it was theoretically open to the developers to argue to the contrary, the judge was entitled to examine the validity of the authorisation and conclude both for the purposes of granting injunctive relief at the interlocutory stage and, later, at any substantive hearing, that it was invalid. Even if a formal declaration of "invalidity" could not have been made in the County Court, this was not a condition precedent to an order for an injunction. What mattered at the interlocutory stage was that the judge should be satisfied that there were reasonable grounds for concluding that the works were not authorised. He was so satisfied. He was entitled to decide the question, and right to be so satisfied.
In the result Mr Payton did not argue that despite the Council's non compliance with s13 the listed building consent was valid. He suggested that it was too late for effect to be given to the conclusion that it was invalid, and that his clients should not be liable for the consequences of anything done by them until the validity of the authorisation had been considered by a court of competent jurisdiction. None of these arguments however meets the point here in issue. The court at Peterborough was vested with jurisdiction to grant an interlocutory injunction on the ground that the building works to be carried out by the developers were not properly or validly authorised.
This appeal should therefore be dismissed.
I should add that in the course of argument I indicated a concern about the potential problems for the developers which could arise in relation to works already carried out on the basis of what turned out to be a flawed authorisation. It is not quite an answer to say that any prosecution in circumstances like these would be an outrage. In any event however that issue does not in fact arise for decision and some of the interesting, and potentially difficult questions, were not closely analysed in argument. I shall therefore decline to express any preliminary views on this topic.
In theory now the case must go back to the County Court for the judge to exercise his discretion and to consider the remaining issues which arise in this litigation. I venture to hope that by now, some eighteen months after the grant of the injunction, both sides will have contemplated a more productive use of funds than protracted litigation, including the court based ADR facilities available to them at Peterborough Court.
Otton LJ:
I agree.