England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		14 March 2008

1. MR JUSTICE MITTING: This is an appeal by way of case stated from the decision of His Honour Judge George, sitting with magistrates at Liverpool Crown Court on 1 December 2006, allowing an appeal by Derwent Holdings Ltd against the decision of the district judge which had dismissed Derwent Holdings' appeal against a notice served by Liverpool City Council under Section 79 of the Building Act 1984.
2. The facts can be shortly stated. Edge Lane is one of the main arterial roads leading from the motorway system into the city centre of Liverpool. In February 2004 a public house known as the Travellers' Rest Public House at 522 Edge Lane was demolished by the predecessor in title to Derwent Holdings. The site is shown in photographs in the condition in which it was towards the end of 2005 and shortly before the appeal hearing before the Crown Court. It is surrounded by open mesh fencing and contains within it a large amount of building debris and other materials, most, if not all, of which result from the demolition of the public house. It has been in that condition or something very close to it ever since February 2004.
3. Section 79 (2) of the Building Act 1984 provides:

"If it appears to a local authority that -

(a) rubbish or other material resulting from, or exposed by, the demolition or collapse of a building or structure is lying on the site or on any adjoining land, and

(b) by reason thereof the site or land is in such condition as to be seriously detrimental to the amenities of the neighbourhood,

the local authority may by notice require the owner of the site or land to take steps for removing the rubbish or material as may be necessary in the interests of amenity."

4. Such a notice was served on 7 November 2005. There is a statutory right of appeal contained in Section 102 of the Act, the relevant parts of which provide:

"(1) Where a person is given a notice in relation to which it is declared by any provision of this Act that this section applies, he may appeal to a magistrates' court on any of the following grounds that are appropriate in the circumstances of the particular case -

(a) that the notice or requirement is not justified by the terms of the provision under which it purports to have been given."

5. Derwent Holdings appealed to the Magistrates' Court. The district judge dismissed the appeal, finding that the site was unkempt and neglected and so stood out on its own, and that by reason of its position on a main route into the city along which hundreds of people would have travelled daily, the site was a serious detriment to the amenity of the neighbourhood. I have been shown colour photographs of the site taken in late 2005 and shortly before the hearing of the appeal in 2006 which make her findings readily understandable. Put colloquially, the site was - and as at December 2006 was - an eye sore. It is situated within a mixed area. Its immediate neighbours are light industrial uses and large retail sheds. More distantly are some houses.
6. Amongst its findings in the case stated the Crown Court noted Derwent Holdings' estimate that it would probably take about six months to obtain planning permission so that it was likely to take about a year before the site could be cleared. The Crown Court also noted that there was no evidence that any other site along Edge Lane had recently been demolished or was actually being developed at the time.
7. A number of legal issues were canvassed during the course of the appeal hearing, to most of which it is not necessary to refer. The judge gave an oral judgment in the court which dealt with those issues and also summarised its conclusions on the statutory questions. It was common ground that the court was not conducting a review of the reasonableness or otherwise of the local authority's decision to serve the notice but was conducting a full merits appeal, in which it was required to answer the statutory questions posed in Section 79 (2) (a) and (b). It was right to do so.
8. In the oral judgment the judge said:

"The site is over the road from the majority of the residential property in the area and also there has only ever been one complaint by other people situate in Edge Lane, that is to say the Prince William Pottery [a neighbouring landowner]. One knows that if there is something that is seriously detrimental there is a concern expressed in writing about it. There has been concern expressed in the local press and that is entirely understandable. We have also been referred to a report which appears at page 97 of the bundle as to the prospects of the area and what should be done."

9. The reference to the report in the local press was a reference to publicity given in the local press to the report, which was at page 97 in the bundle. That was a report prepared by independent consultants which went under the colloquial name of the Grot Spot Report. It was an examination of the top 100 sites within Liverpool which, in the view of the authors of the report, adversely affected the amenities of the neighbourhoods in which they were found. This site was the third worst site it Liverpool in the estimation of the authors, applying the methodology which they used. Their conclusion was that it was a -

"vacant site that consists of poor boundary treatment and building debris."

It concluded that it detracted from the street scene and that the impact was made worse by the lack of screening.

10. The court's conclusion - stated orally - was:

"The end result of our joint consideration of the evidence is 'yes', this site is detrimental to the amenity of the neighbourhood. We have also reached the conclusion that a disinterested observer would quickly form the view that it was an area ripe for development which is going through a usual stage in development and consequently the relevant detriment is not serious."

That conclusion was re-stated in the findings set out in the case stated which were:

"We were of the opinion that:

(1) it was not necessary to determine on whom the burden of proof lay;

(2) amenity in the present context refers to the pleasantness of the neighbourhood;

(3) the site was detrimental to the amenity of the neighbourhood but the detriment was not serious in the circumstances disclosed by the evidence because a disinterested observer coming to or residing in the neighbourhood would quickly form the view that the neighbourhood was an area ripe for development which was going through a usual stage in development."

Accordingly the court allowed the appeal.

11. In his submissions to me today Mr Jackson, for Liverpool City Council, made the following submission. First, the burden of proving that the site was not a serious detriment to local amenity lay on Derwent Holdings. Secondly, Derwent Holdings did not discharge that burden of proof. Thirdly, an alternative way of putting the second proposition, the court's conclusion that it can discharge that burden of proof or that it was unnecessary to do so, was perverse on the evidential material that it had.
12. At the heart of Mr Jackson's appeal is his proposition that no conclusion other than that this site was a serious detriment to the amenity of the neighbourhood was open to the court. He bases that proposition on the photographs to which I referred and on the report to which I have referred. In the teeth of that evidence, he submits, no reasonable court could come to any other conclusion.
13. As to the first issue - on whom the burden of proof lies - in my judgment it clearly lay on Derwent Holdings. The point was of no practical significance in the case and is highly unlikely ever to be of any practical significance. In a case in which there was literally no evidence and no material upon which a court could reach the view that the notice served under Section 79 should not have been served or should not stand, then, applying the burden of proof, the court would conclude that it had not been discharged and so would dismiss an appeal. All that means in practice is that where an appeal is lodged to the Magistrates' Court or to the Crown Court by a site owner and the site owner does not turn up at the appeal and put in any evidence, it is unnecessary for the local authority which has served the notice to call its evidence to prove that the notice was properly served.
14. In all other cases where evidence is called and other material in the form of reports is presented and when, as may often be the case, there is a site view it is simply for the court to form its own judgment about whether or not the statutory test of serious detriment to the amenity of the neighbourhood is fulfilled. The court approached its task in precisely that way and it was right to do so.
15. One aspect of the information relied upon by the court deserves some comment. In the course of his oral judgment Judge George noted that the magistrates were local residents in the sense that they lived in the Wirral and frequently travelled to and from Liverpool and so knew the general area of Edge Lane. He also noted that he had himself that morning made a visit to the site, as he put it, as a safety precaution to check that "we were under no misconceptions". Neither counsel objected to that occurrence when the judge made it known. For future reference it would be preferable, if the court is to rely to any extent upon its own observations of a site and neighbourhood during the course of the hearing, that a site visit is conducted by all members of the court. It would not require formality although in many cases it might be desirable to invite counsel, at least for the interested parties, to attend. On the facts of this case no harm was occasioned by the judge's approach, and those words are accordingly merely precautionary.
16. I turn then to the heart of Mr Jackson's appeal that the decision was perverse. If I had been deciding this case myself I would have agreed with the view of the district judge, at least on the material I have seen. But that is not my task. My task is to determine whether or not the Crown Court, exercising its own judgment, could reasonably have come to a different view. In my judgment, it was plainly open to the court to reach a different judgment about what is essentially a matter of judgment - the seriousness of the impact of this site upon the amenity of the neighbourhood. It is neither possible nor necessary to elaborate that proposition. Matters of judgment are precisely that. Provided that a correct legal test is applied, it is not, on an appeal by way of case stated, for this court to substitute its own view for that of the court below.
17. I did at one stage contemplate whether or not the test applied by the Crown Court was deficient. As I have recited, this site had by December 2006 remained broadly in its then condition for two and three-quarter years. The court did not expressly direct itself to take that period into account in arriving at its judgment about seriousness.
18. It is plain from the oral judgment that the court did realise that the site had been in its then current state for two and three-quarter years and did realise that it would be at least a year before it would be clear (see paragraph 5 (4) of the case stated). Accordingly I cannot properly infer that the court did not have that significant temporal factor in mind in reaching its decision about seriousness even though it did not expressly state it.
19. The court was right to approach amenity as meaning pleasantness, which is a reasonable sense for amenity in the context. It was entitled to take into account its view of the state of the neighbourhood and to do so by reference to the view of the disinterested observer. It was plainly entitled to conclude that the neighbourhood was an area ripe for development which was going through a stage in development. Its conclusion that the stage was "usual" is arguably surprising in the light of the length of time this site had remained in its then condition. But that conclusion is not so surprising as to be perverse.
20. Accordingly, in my judgment, the court applied the correct legal tests to the questions which it had to answer, and reached a conclusion that it was entitled to reach.
21. Four questions are posed by the case stated:

"1 Was there sufficient evidence to support a finding that the site was not seriously detrimental to the amenity of the neighbourhood?

2 If not, upon whom does the legal or evidential burden lie?

3 Were we entitled as a matter of law or fact to determine that the amenity was not seriously impacted upon on the ground set out in paragraph 7 (3) above?

4 In any event, was Section 102 (1) of the Building Act 1979 correctly construed by the Crown Court?"

The answer to those questions is: 1, yes; 2, on Derwent Holdings both as to legal and evidential burden; 3, yes; 4, yes.

22. For those reasons this appeal is dismissed.
23. MR TUCKER: Mr Lord, my client is the second respondent to the appeal, the first respondent, as is usual in appeals of this nature, not attending. My client plainly has a clear interest in being represented at this appeal. In the circumstances I apply for my client's costs in the sum of £23,574.61. I hand up a schedule, the same schedule that has been served on the city council in November last year.
24. MR JUSTICE MITTING: You have the schedule.
25. MR JACKSON: I do not have a schedule. I do not know what schedule. I have not seen a schedule. I do not know what costs these are. If my friend asks for his costs of this appeal to be assessed in detail on a standard basis I have no objection. I am not in a position to comment upon the costs beyond this appeal and/or the quantum of those costs today.
26. MR JUSTICE MITTING: I am supposed, if I can, to assess costs. I propose to look at the schedule to see whether or not it is a task that I am likely to be able to fulfil.
27. MR JACKSON: In this connection I invite you to leave untouched the costs order of the Crown Court which was not that Derwent Holdings receive all of its costs. There was no order for costs at the first instance and Derwent Holdings was to recover 75 per cent of its costs.
28. MR JUSTICE MITTING: There is no appeal against the costs order. I am not invited to disturb that. In the event that the appeal has been rejected - as it has been - there is no appeal against that.
29. MR JACKSON: I do speculate. It is to my astonishment that £23,000 could be incurred upon this appeal. I can only surmise that my friend must be referring to other costs.
30. MR TUCKER: I hand up the schedule of the city council which is higher than the appellant's costs in the sum of £29,000.
31. MR JUSTICE MITTING: The one I have today is £11,775.
32. MR TUCKER: The one I have is 29,000. It does not take my submissions very much further. If anything, it is a jury point.
33. MR JUSTICE MITTING: Perhaps that one was served in terrorem.
34. MR TUCKER: It may be. In fairness, those instructing me have just handed me a schedule for £11,775.
35. MR JUSTICE MITTING: If the costs schedule was served upon you then the usual practice is I attempt to make a summary assessment. If it was not served on you, then I cannot.
36. MR JACKSON: I have not seen one recently. I will do my best.
37. MR JUSTICE MITTING: Would you like me to rise for five minutes while you look at the schedule and take instructions on it?
38. MR JACKSON: Yes.

(Short Adjournment)

39. MR JACKSON: The assessment will be very difficult. I would urge you to put this to detailed assessment. I understand that is a view which the respondent embraces. If you felt that the burden was at all difficult in getting to the particular figures there would be no pressure from the Bar to uphold your duties. May I move to the next? I am provided with a costs schedule dated November.
40. MR JUSTICE MITTING: 28 November.
41. MR JACKSON: That was the occasion when this appeal was listed to come before your colleague.
42. MR JUSTICE MITTING: What happened to it?
43. MR JACKSON: The judge recused himself by reference, I understand, to - - - - -
44. MR TUCKER: His Honour Judge Gilbart was originally to deal with this, sitting as a High Court judge. He received the papers at quarter-past five the day before the case was due to be heard. When he perused the papers it became clear that he advised the Prince William Pottery. He immediately got his clerk to notify certainly my clerk, and I think attempts were at that stage made to notify the city council. Regrettably that was not successful. There was a simple conflict.
45. MR JUSTICE MITTING: Mr Tucker, in the light of that, it seems this is not a straightforward case in which I can do the usual assessment. Are you content with that?
46. MR TUCKER: The letter we wrote to the city council yesterday indicated that we did think detailed assessment was appropriate. I do not make any submissions to the contrary.
47. MR JUSTICE MITTING: In which case I am mot going to trouble you further. The order that I make is that the appellant will pay Derwent Holdings' costs to be the subject of detailed assessment if not agreed.