QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|BUTLER & YOUNG LIMITED||(APPELLANT)|
|BEDFORD BOROUGH COUNCIL||(RESPONDENT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR RANJIT BHOSE (instructed by Borough Solicitor, Bedford Borough Council, Bedford, MK40 1SJ) appeared on behalf of the RESPONDENT
Crown Copyright ©
"(a) a notice in the prescribed form (called an 'initial notice') is given jointly to a local authority by a person intending to carry out work and a person who is an approved inspector in relation to that work,
"(b) the initial notice is accompanied by such plans of the work as may be prescribed,
"(c) the initial notice is accompanied by such evidence as may be prescribed that an approved scheme applies, or the prescribed insurance cover has been or will be provided, in relation to the work, and
"(d) the initial notice is accepted by the local authority,
"then, so long as the initial notice continues in force, the approved inspector by whom the notice was given shall undertake such functions as may be prescribed with respect to the inspection of plans of the work [to which the notice relates], the supervision of that work and the giving of certificates and other notices."
"A local authority to whom an initial notice is given-
"(a) may not reject the notice except on prescribed grounds, and
"(b) shall reject the notice if any of the prescribed grounds exists,
"and in a case where the work to which an initial notice relates is work of such a description that, if plans of it had been deposited with the local authority, the authority could, under any enactment, have imposed requirements as a condition of passing the plans, the local authority may impose the like requirements as a condition of accepting the initial notice.
Subsection (3) provides:
"(3) Unless, within the prescribed period [which is five days. It used to be ten, but has been reduced to five], the local authority to whom an initial notice is given give notice of rejection, specifying the grounds or grounds in question, to each of the persons by whom the initial notice was given, the authority is conclusively presumed to have accepted the initial notice and to have done so without imposing any such requirements as are referred to in subsection (2) above."
"Where an approved inspector-
"(a) has inspected plans of the work [to which an initial notice given by him relates].
"(b) is satisfied that the plans neither are defective nor show that work carried out in accordance with them would contravene any provision of building regulations, and
"(c) has complied with any prescribed requirements as to consultation or otherwise,
"he shall, if requested to do so by the person intending to carry out the work, give a certificate in the prescribed form (called a 'plans certificate') to the local authority and to that person."
"(2) If any question arises under subsection (1) above between an approved inspector and a person who proposes to carry out any work whether plans of the work are in conformity with building regulations, that person may refer the question to the Secretary of State for his determination."
There is a similar provision, in relation to cases where the local authority is responsible for the supervision, in section 16 of the Act.
"This section applies where it is proposed that the work to which an initial notice relates should be carried out by a different person.
"(a) the approved inspector who gave the initial notice, and
"(b) the person who now proposes to carry out the work to which the initial notice relates,
"jointly give written notice of the proposal to the local authority by whom the initial notice was accepted, the initial notice shall be treated as showing as the person intending to carry out the work to which it relates the person mentioned in the notice under this section.
That, it is submitted by the Council, is only effective in relation to works which have not yet been commenced because it talks, in subsection (2), of "the person who now proposes to carry out the work" and, further in the same subsection, it talks about the initial notice being treated as showing "as the person intending to carry out the work". That means, it is submitted, that that can only apply where there is a change before the work is begun.
"If, at a time when an initial notice is in force-
"(a) the approved inspector becomes or expects to become unable to carry out (or to continue to carry out) his functions with respect to any of the work to which the initial notice relates,
"(b) the approved inspector is of the opinion that any of the work is being so carried out that he is unable adequately to carry out his functions with respect to it, or
"(c) the approved inspector is of the opinion that there is a contravention of any provision of building regulations with respect to any of that work and the circumstances are as mentioned in subsection (2) below,
"the approved inspector shall cancel the initial notice by notice in the prescribed form given to the local authority concerned and to the person carrying out or intending to carry out the work."
The prescribed form, again in the Building Inspectors Regulations, is contained in Form 6. The particulars include a provision which indicates, if it be the case, that there has been a particular contravention of the Regulations, which the individual has failed to remedy. Otherwise, it merely indicates that the notice has been cancelled.
"The circumstances referred to in subsection (1)(c) above are-
"(a) that the approved inspector has, in accordance with building regulations, given notice of the contravention to the person carrying out the work, and
"(b) that, within the prescribed period, that person has neither pulled down nor removed the work nor effected such alterations in it as may be necessary to make it comply with building regulations."
"If, at a time when an initial notice is in force, it appears to the person carrying out or intending to carry out the work to which the notice relates that the approved inspector is no longer willing or able to carry out his functions with respect to any of that work, he shall cancel the initial notice by notice in the prescribed form given to the local authority concerned and, if it is practicable to do so, to the approved inspector."
The prescribed form in that regard is merely an indication that the notice has been cancelled. It does not indicate any particular reason. There is an obligation upon the builder to cancel in those circumstances. If he does not, by subsection (4), he is liable to a criminal penalty.
"The fact that an initial notice has ceased to be in force does not affect the right to give a new initial notice relating to any of the work to which the original notice related and in respect of which no final certificate has been given and accepted; but where-
"(a) a plans certificate has been given in respect of any of that work,
"(b) the conditions in paragraphs (a) to (c) of subsection (2) above are fulfilled with respect to that certificate, and
"(c) such a new initial notice is given and accepted,
"Section 50(1) above does not apply in relation to so much of the work to which the new initial notice relates as is work specified in the plans certificate."
The part of subsection (7) which refers to plans certificates is not directly material to the issue which I have to determine. But it clearly provides, on the face of it, that, provided no final certificate has been given, the fact that an initial notice has ceased to be in force does not affect the right to give a new initial notice relating to any of the work to which the original notice related.
"(1) A person who proposes to carry out building work shall not commence that work unless-
"(a) he has given the local authority notice that he intends to commence work; and
"(b) at least two days have elapsed since the end of the day on which he gave the notice."
Then, in the same regulations, in Part VI it is provided by regulation 20 that regulation 15 and some other regulations shall not apply in respect of any work specified in an initial notice which is in force. It is, as I say, common ground that, in those circumstances, this work was unlawfully commenced.
"In this regulation, 'unauthorised building work' means building work other than work in relation to which an initial notice ... has effect, which is done without --
"(a) a building notice being given to the local authority; or
"(b) full plans of the work being deposited with the local authority; or
"(c) a notice of commencement of work being given, in accordance with regulation 15(1) of these Regulations, where a building notice has been given or full plans have been deposited.
"(3) Where this regulation applies, the owner (in this regulation referred to as 'the applicant') may apply in writing to the local authority for a regularisation certificate in accordance with this regulation, and shall send with his application --
"(a) a statement that the application is made in accordance with this regulation,
"(b) a description of the unauthorised work,
"(c) so far as is reasonably practicable, a plan of the unauthorised work, and
"(d) so far as is reasonably practicable, a plan showing any additional work required to be carried out to secure that the unauthorised work complies with the requirements relating to building work in the building regulations which were applicable to that work when it was carried out ...
"(4) Where a local authority receive an application in accordance with this regulation, they may require the applicant to take such reasonable steps, including laying open the unauthorised work for inspection by the authority, making tests and taking samples, as the authority think appropriate to ascertain what work, if any, is required to secure that the relevant requirements are met."
That is a very important power because it enables the local authority to ensure that work carried out has complied with the relevant requirements of the Building Regulations.