England and Wales High Court (Administrative Court) Decisions

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

		Sitting at: Manchester Civil Justice Centre 1 Bridge Street West Manchester M3 3FX
		21 May 2013

Mr Justice Supperstone:

1. This is an appeal by way of case stated against the decisions of HHJ Nield and two lay magistrates, given on 15 June and 11 July 2012 at the Manchester Crown Court, whereby they dismissed the appeal against the decision of Salford Magistrates' Court upholding the notice served by the respondent pursuant to section 215 of the Town and Country Planning Act 1990 and ordered that the appellant should pay costs awarded to the respondent in the total sum of £5,500.
2. The appellant, Mr Geoffrey Berg, is the owner of a property at 577 Liverpool Road, Irlam, which is the subject of this appeal. The respondent to this appeal is Salford City Council. Before the Crown Court there was a document of agreed facts, agreed by Mr Berg, who appeared in person, and Miss Denise Fitzpatrick, who appeared on behalf of the respondent. Mr Berg appears in person before this court and Miss Fitzpatrick appears on behalf of the respondent.
3. The relevant background facts are undisputed and can be taken from the document and the case stated. The property is commercial premises situated on a main road. One of the properties adjoining the premises is a fast food takeaway. The other is a private hire vehicle office. On the other side of the takeaway there is a Chinese food takeaway. On the opposite side of Liverpool Road to number 577, there is a bus stop 30 yards away and a church. Within sight of the property there is also a public house.
4. On 19 June 2009 Urban Visions Partnership Limited, on behalf of the Council, completed a report which outlined the course of action to be taken in relation to a number of properties and sites in Irlam and Cadishead. 577 Liverpool Road was identified as having adverse impact on the general area and neighbouring properties.
5. On 4 August 2010 the Council wrote to Mr Berg as the owner of 577 Liverpool Road requiring him to undertake five improvements to the property. He replied by letter dated 16 August, asserting that the property in terms of its exterior appearance was not in a particularly bad condition and disputing the application of section 215 to the property. There was further correspondence between Mr Berg and the Council in October and November 2010. On 25 November a section 215 notice was issued in respect of the property, which was sent to Mr Berg by recorded delivery on 30 November.
6. The notice was addressed to Mr Berg as the owner of 577 Liverpool Road, Irlam, as shown edged red on the attached plan, and stated:

"...it appears to the Council that the amenity of part of its area is adversely affected by the condition of the said land.

Now Therefore the Council in pursuance of the said section 215 Hereby Give You Notice that it requires the steps specified in the Schedule hereto to be taken for remedying the condition of the said land within 28 days from the date on which this notice shall take effect.

This Notice shall take effect subject to the provisions of Section 217(3) of the Act on the expiration of 28 days after the service hereof."

7. Five bullets points followed in the schedule, which I shall number 1 to 5:

"[1] Replace the existing window boarding with a single replacement board that fully covers all of the window and is of an adequate material which will serve to properly secure the building and withstand the weather conditions.

[2] Clean and prepare all exterior woodwork, removing in the process old advertisements, fly posting and any rotten timbers with replacement woodwork, which is an accurate replica of the original design in terms of profile.

[3] Clean and prepare the stone sills, in the process removing all flaking paint and growth of plants from the brickwork, to ensure that they are in an appropriate condition for repainting.

[4] Repaint the exterior timbers with an exterior wood primer, undercoat and gloss in a colour to be agreed by the LPA.

[5] Paint the window boarding with an exterior wood primer, undercoat and gloss in a colour to be agreed by the LPA."

8. Section 215 of the Act under which the notice was served provides:

"(1) If it appears to the local planning authority that the amenity of a part of their area, or of an adjoining area, is adversely affected by the condition of land in their area, they may serve on the owner and occupier of the land a notice under this section.

(2) The notice shall require such steps for remedying the condition of the land as may be specified in the notice to be taken within such period as may be so specified.

(3) Subject to the following provisions of this Chapter, the notice shall take effect at the end of such period as may be specified in the notice.

(4) That period shall not be less than 28 days after the service of the notice."

9. By section 216(2) of the Act:

"If any owner or occupier of the land on whom the notice was served fails to take steps required by the notice within the period specified in it for compliance with it, he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale [a maximum fine of £1,000]."

10. Section 217 of the Act provides for the right of appeal to the Magistrates' Court against a section 215 notice on any of four grounds, the material ones for present purposes being as follows:

"(c) that the requirements of the notice exceed what is necessary for preventing the condition of the land from adversely affecting the amenity of any part of the area of the local planning authority who served the notice, or of any adjoining area;

(d) that the period specified in the notice as the period within which any steps required by the notice are to be taken fall short of what should reasonably be allowed."

11. Section 217(4) and (5) provide as follows:

"(4) On such an appeal the magistrates' court may correct any informality, defect or error in the notice if satisfied that the informality, defect or error is not material.

(5) On the determination of such an appeal the magistrates' court shall give directions for giving effect to their determination, including, where appropriate, directions for quashing the notice or for varying the terms of the notice in favour of the appellant."

12. Section 218 of the Act makes provision for a further appeal against a decision of the Magistrates' Court to the Crown Court. Mr Berg appealed against the notice served on him to the Magistrates' Court. Paragraph 24 of the Agreed Facts states:

"Two of the five parts of the schedule (the third and fourth requirements) of the notice under dispute (dated 25 November 2010) were withdrawn by Salford City Council at the court hearing on 9th June 2011 and are not now part of the proceedings. Salford City Council do not dispute that the upper floor over number 577 is part of 579 Liverpool Road, which is also owned by Geoffrey Berg."

13. No point was taken by Mr Berg about the Council's decision to withdraw these two requirements on the validity of the notice. On 20 October 2011 the appeal, heard by Deputy District Judge Jones in the Magistrates' Court, was dismissed, save for some amendments (described as "some minor amendments" in the agreed facts), so that the three remaining requirements in the section 215 notice were:

"[1] Replace the existing window boarding with a single replacement board that fully covers all of the window and is of an adequate material which will serve to properly secure the building and withstand the weather conditions.

[2] Clean and prepare all exterior woodwork, removing in the process all advertisements including the banner, fly posting and any rotten timbers with replacement woodwork, in a manner appropriate to the property and surrounding area.

...

[5] Paint the window boarding with an exterior wood primer, undercoat and gloss in a colour to be agreed by the LPA."

Deputy District Judge Jones ordered that these three requirements were to be complied with within two months of 20 October 2011.

14. The statement of agreed facts also included the following:

"8. Salford City Council does not have a record of any complaints from any member of the public concerning the frontage of 577 Liverpool Road, Irlam between 2006 and October 2011.

9. Salford City Council contemplated taking action in respect of thirty-one properties (or land areas) along Liverpool Road. Of those properties, six were sent notices pursuant to section 215, five properties agreed to a shop front improvement scheme. The use of section 215 notices is part of a strategy to improve and regenerate Liverpool Road in Eccles, Irlam and Cadishead. Section 215 notices were also used in other areas of Salford including over hundred last year in the Broughton ward.

10. Number 575 Liverpool Road was identified as having an adverse impact on the amenity of the general area and neighbouring properties because the advertisement's scale was not in keeping or respectful to the physical character and context of the area. However, there was no breach and thus the advertisement remained and will remain for the foreseeable future, [it having deemed consent as a permitted development] ...

12. Page 102 of the 'Addendum Report' to the 'Progress Report' dated 19th June 2009 completed by Niketta Wilks states 'The street scene in Irlam and Cadishead is generally poor but will be improving significantly.' ...

17. 577 Liverpool Road is not a listed building and is not in a conservation area or any other formal category which obliges property owners to maintain properties to a higher than normal standard. ...

20. The original appearance of the frontage of the premises is unknown in that no photographic evidence of the original appearance of the front of 577 Liverpool Road has been found."

15. The appellant's appeal to the Crown Court was dismissed. The issuing of the notice was upheld in accordance with the terms as amended by Deputy District Judge Jones, save that the requirement in condition 5 for the Council to prove in advance the colour of paint to be used was deleted.
16. Following this decision, Mr Berg applied to the Crown Court to state a case. The Crown Court has duly done so and has sought the opinion of the High Court on the following eight questions:

"1. Can a notice pursuant to section 215 of the Town and Country Planning Act 1990 be used in whole or in part to effect 'improvements' or alterations to land or property that go beyond 'literal maintenance', such as for example, a clause compelling the replacement of three pieces of painted hoarding with a single piece of larger painted board, or requiring repainting, where it appeared that there was no ongoing or current maintenance issue?

2. How should the 'amenity of an area or part of an area' be interpreted under this legislation; in particular

a) Must a property be clearly distinguishable from other properties in the area in relation to disamenity?

b) Should 'Amenity of the area' in this context refer not just to the immediately neighbouring premises but to the whole neighbourhood?

c) Can visual features difficult to see from a distance of more than one metre away form part of a visual disamenity?

d) Can a local authority reasonably be of the opinion that arrangements (for example for boarding) it often employs itself in its own management of properties can constitute a disamenity to another ordinary area (i.e. not a conservation area etc) within its own borough?

3. In order for notices issued pursuant to section 215 of the Town and Country Planning Act 1990 to have been lawfully issued, does the condition of the premises need to actually interfere with the amenity of others or is it sufficient for visual disamenity to be established?

4. Is the proper time for consideration of the appropriateness of a notice pursuant to section 215 of the Town and Country Planning Act 1990 the date upon which the Council issues the notice, the date upon which the Notice is served, the making of the order by the magistrates or the date upon which the Crown Court delivers its judgment? How does this impact upon

a) a situation where inevitable delay is occasioned between all of those processes when change may well occur?

b) Costs and other matters arising by reason of a notice correct at the date of issue but potentially no longer viable at the time of consideration by an appeal jurisdiction?

5. Is the requirement to 'clean and prepare all exterior woodwork, removing in the process all advertisements including the banner, fly postings and any rotten timbers with replacement woodwork in a manner appropriate to the property and the surrounding area' sufficiently clear, precise and unambiguous (in relation specifically to an area where there is no regularity of building frontage), for it to be a proper requirement to be incorporated into a court order, breach of which would become a criminal offence?

6. Can a third party's rights be distinguished without him having the opportunity to be heard by a judge who decides whose rights are to be in effect de minimis?

7. Should this Notice be quashed either now or should it have been so previously, on the basis of material error or defect mindful of the fact that of its six provisions three had been altered and a further two struck out entirely?

8. Considering the maximum level of fine which may be imposed in respect of breach of a notice issued under section 215 Town and Country Planning Act 1990 and considering the cost of doing the work the Notice requires, is the award of costs made by the Crown Court disproportionate, unjust, or incorrectly assessed in principle?"

I shall deal with each question in turn.

Question 1

17. Mr Berg submits that section 215 is concerned with the maintenance of land, not with improvement of land. He relies on the title of the section, "Power to require proper maintenance of land", and on the heading of the notice that was served on him, "notice requiring proper maintenance of land". "Maintenance" in its natural and ordinary meaning is "keep in existence" or "preserve from loss or deterioration", which is, he submits, radically different from the meaning of "improvement", which means "a change for the better". The legislation, Mr Berg submits, ought to be interpreted in the narrowest possible way because of the criminal sanction that attaches to breach of the notice, in particular because some individuals will not be in a position financially to maintain their property. Moreover, if the section encompasses works of improvement, there is, he suggests, no limit to the degree of improvement or expense to which property owners can be required to comply.
18. Mr Berg submits that the notice cannot go beyond maintenance save insofar as the pre-existing condition of the land may be ascertained.
19. Mr Berg submits that any other interpretation would conflict with the guidance in Ministerial Circular and the Department of the Environment, which states:

"Authorities will no doubt continue to use the powers with discretion as a means of dealing with relatively isolated severe cases of neglected or unsightly land."

20. Miss Fitzpatrick submits that proper maintenance will inevitably bring improvement to the land in question. She submits that it is sometimes impossible to differentiate between "maintenance" and "improvement", and "improvement" may result from literal maintenance. Land may have an adverse effect on the area without necessarily there being a current maintenance issue.
21. Further, she submits that the requirements of the section 215 notice in the present case, including the clause of compelling the replacement of three pieces of painted boarding with a single piece of larger painted board, constituted "maintenance" within the meaning of the statute. In my judgment, the Crown Court did not err in finding that "...it is on many occasions impossible to differentiate between repair and improvement, inevitably repair is likely to lead to improvement." (judgment at page 9B).
22. Bennion on Statutory Interpretation, 5th Ed, page 747, in section 256 states that a heading to a section "may be considered in construing the section… provided due account is taken of the fact that its function is merely to serve as a brief and therefore possibly inaccurate, guide to the content of the section."
23. Section 215 does not in terms refer to "maintenance" or "improvement". It focuses on the amenity of a part of the local planning authority's area being "adversely affected by the condition of land in their area". In construing the words "the condition of land", regard should be had to the right of appeal conferred by section 217. Section 215(2) requires the notice to specify the steps to be taken for "remedying the condition of the land". Section 217(1)(c) limits those steps to "what is necessary" for preventing the condition of the land from adversely affecting the amenity of any part of the area. The terms of the statute do not require consideration of whether this step amounts to "maintenance" or "improvement".
24. Mr David Best, who is employed by Urban Vision, as an associate planning consultant, gave evidence for the respondent as the individual concerned with the relevant area within which the property was situated. The judgment noted at page 13H to I:

"He regarded the appellant's property to be in a state of dilapidation. The properties on either side he described as being in a relatively good condition, (the taxi firm), and a reasonable condition, (the fast food takeaway, also owned by Mr Berg, but tenanted). He also expressed the view that number 577 appeared as a "blot on the landscape". He described it as unattractive and standing out from its neighbouring premises, with very little effort made to make any improvements."

25. At page 14C to E the judgment continued:

"In relation to the boarding, which is an issue of significance to both parties, he put forward the view that although it was very difficult to see that the boarding was in three sections unless one was within a metre or so of the window, Mr Best maintained the respondent's view that in terms of long-term maintenance, it was far better for there to be a single board, less likely to be susceptible to weathering rather than three separate boards. He also accepted that the amenity value, or lack of it, lay to some extent with its colour and general appearance rather than any problem with condition of the boarding at the present time."

26. 3. At page 15G to H of the judgment it is noted that Mr Best:

"accepted that they [the Council] were seeking improvements to buildings, but only those that were a disamenity, and denied that the local authority were using section 215 notices habitually for matters of minor disrepair. It was his opinion that improvement is effectively about rectifying repair, making it look better, so that it is adequate but not excessively so, thus making the area grow in economic and improvement terms through repair and refurbishment, as far as possible."

27. The Crown Court accepted Mr Best's evidence. In my judgment, for the reasons I have given, the answer to question 1 is yes.

Question 2

28. Mr Berg noted that there is no definition of "amenity". He submits that for amenity to exist, it must at the very least be substantive rather than nugatory or slight. It must have a real rather than a merely incidental or mainly academic impact upon people within the neighbourhood. If a property is a disamenity to an area, it must, he submits, necessarily stand apart as distinctly worse than other properties or, at the very least, the overwhelming majority of neighbouring properties in the area. Further, the reference in the legislation is to the local authority's area or part of the area, rather than to adjacent neighbouring properties. He suggests any supposed disamenity has to be more than an inconvenience to neighbouring properties, and must impact upon a neighbourhood as a whole.
29. Further, he submits, having regard to owner's rights under Protocol 1 of the European Convention on Human Rights, visual features, in this case the boarding, cannot be seen from close up photographs, and scarcely, if at all, from more than one metre away cannot constitute a disamenity.
30. Miss Fitzpatrick invites the court to have regard to the Best Practice Guidance, which provides:

"'Amenity' is a broad concept and not formally defined in the legislation or procedural guidance, ie it is a matter of fact and degree and, certainly common sense. Each case will be different and what would not be considered amenity in one part of a CPA's area might well be considered so in another. The local planning authority will generally need to consider the condition of the site, the impact on the surrounding area and the scope of their powers in tackling the problem before they decide to issue a notice."

31. In my view, the guidance provides the most appropriate interpretation of the definition of "amenity of the area". At page 16A of the judgment the Crown Court stated:

"We accept… that each particular part of the local authority area can be looked at in an individual way, and that it is all relative… What might be acceptable in one street or area may be wholly unacceptable in another."

32. At page 16E the judgment continues:

"The legislation talks about the amenity of "a part of their area" being adversely affected… and we see no logic or sense in taking an approach which suggests that because there are other areas of the same local authority which are arguably worse than the condition of the premises with which the court is concerned, then the immediate premises cannot be regarded as "adversely affecting the amenity" within the terms of the Act."

33. In my judgment, this is the correct approach. It is a question of commonsense and fact and degree depending on the location of the land or property as to whether visual features difficult to see from more than a distance of 1 metre away form part of a visual disamenity. This property is on a busy road, where members of the public frequently walk past on a pavement which abuts the property. Further, I accept Miss Fitzpatrick' submission that the state of the property need not be clearly distinguishable from other properties in the area in relation to disamenity. To simply say that because the whole area is in a poor and depressed state, action cannot be taken against an individual property which is of a particular concern, would, in the words of the judgment, "stifle all purpose to the particular legislation" (page 10B). The court understood the appellant's frustration at what he sees to be the "double standards" of the Council in that some of the boarding of the properties in a central area of Salford were significantly poorer in condition than the boarding of Mr Berg's premises. In relation to "double standards", Mr Berg prayed in aid the observations of Toulson LJ (as he then was) in Cambridge City Council v Alex Nestling Limited [2006] EWHC 1374 (Admin). However, the properties in Central Salford are 8 to 12 miles from 577 Liverpool Road, and the statute refers to the "amenity of a part of their area". The court, rightly in my view, observed:

"We see no logical sense in taking an approach which suggests that because there are other areas in the same locality which are arguably worse than the condition of the premises with which the court is concerned, then the immediate premises cannot be regarded as "adversely affecting the amenity" within the terms of the Act." (page 16E)

34. In my judgment, the answer to question 2 is as follows. The Best Practice Guidance provides the most appropriate interpretation of the definition of "amenity". Answers to specific questions are: (a), no; (b), yes; (c), yes; (d), yes.

Question 3

35. Mr Berg submits that forcing somebody to make changes to their property, even if they may not have the financial means to do so, would constitute an infringement of that person's right to peaceful enjoyment of their property and possessions, in breach of Protocol 1 of the ECHR. That being so, section 215, he submits, should be construed in the narrowest possible way. Accordingly, he submits only actual interference in the amenity of others would justify a section 215 notice. In support of that submission, Mr Berg relies on the case in Guildford reported in the Daily Mail, in which Mr Recorder Christopher Purchas QC is reported as observing that for a property to be subject to a section 215 notice, it must interfere with the amenity of other people who live in the area. Mr Berg submits that there must be a material interference. He accepts that visual disamenity can amount to material interference, but for it to do so, there must, he says, be evidence that it does so. Mr Berg points to the agreed fact that no member of the public had complained about conditions at the property. However, in my view the Crown Court was correct to conclude that the absence of complaints from members of the public in relation to the state of the premises is no more determinative of this issue than was the presence of such complaints in the Guildford case. There is, in my view, no good reason, in order for a section 215 notice to have been lawfully issued, why it is not sufficient for a visual disamenity to be established. It is a question of fact in each case as to whether the condition of a property adversely affects the amenity of an area so as to warrant the issuing of a section 215 notice.
36. In the present case the Crown Court concluded on page 9 at paragraph F as follows:

"Our decision, having considered the detailed photographs of the area including the large sheet of photographs showing immediately adjacent properties within the area, is that there is nothing to suppose that this is not a properly issued notice requiring consideration by the court if necessary as to the question of amenity."

37. In my view, the Crown Court did not err in the approach it adopted. In my judgment, it is sufficient for visual disamenity to be established in order for a section 215 notice to be issued. The condition of the premises did not actually interfere with the amenity of others.
38. I would answer question 3 in those terms.

Question 4

39. During the course of oral submissions it became clear that Mr Berg and Miss Fitzpatrick were in agreement that (1) the relevant date for considering whether the Council had been correct in its decision to have issued and served the section 215 notice in respect of 577 Liverpool Road is the date on which the notice was served; (2) however, the proper time for consideration of the appropriateness of the works required in the section 215 notice is the date on which the Crown Court delivers its judgment, or the day on which the Magistrates' Court delivers its judgment should the case not be the subject of a further appeal to the Crown Court. In my view, the parties correctly state the legal position. This is in accord with the decision of the Court of Appeal in an earlier case in which Mr Berg was involved: Berg v Trafford Borough Council 20 HLR 47, which was concerned with the service of notices under section 17(1) of the Housing Act 1961. If there is a change in the position between the time when the notice is issued and the time when the order is made by the court, then there may be costs implications. Whether there are or not will depend on the facts of the individual case.

Question 5

40. In the recent case of R (Allsop) v Derbyshire Dales District Council [2012] EWHC 3562 (Admin), an appeal by way of case stated concerning the proper construction of the Town and Country Planning Act 1990, Leggatt J at paragraph 29 said:

"as a matter of general principle, such notice in order to be valid must identify the condition of the land about which complaint is made and the steps required to remedy that condition with sufficient clarity to enable the recipient of the notice fairly to understand the nature of the complaint and exactly what it is that he must do in order to comply with the notice. That is a basic requirement of fairness and natural justice. And it must be presumed that Parliament intended the local planning authority to exercise the power conferred by Section 215 in accordance with requirements of natural justice."

41. At paragraph 30 the judgment continues:

"It is all the more important that those requirements be satisfied and they are all the more clearly to be applied in circumstances where failure to take steps required by a notice under Section 215 is a criminal offence."

42. Mr Berg submits that the words "in a manner appropriate to the property and the surrounding area" are ambiguous and indeterminate as there is no regularity of building frontage in the area. Therefore, whether something is appropriate to the property and surrounding area is logically indeterminable and at best a matter of subjective opinion. These words to which Mr Berg objects were introduced by the District Judge when he varied terms of the original requirement 2, removing the words "which is an actual replica of the original design in terms of profile". At page 10 of the judgment at paragraph 3(b), it is stated:

"The local authority, whilst accepting that the original terms of the order could not be sustained, argued that the terminology of the District Judge's alteration could be, and the requirement that the frontage fit the surrounding area could be determined by commonsense or, if necessary, by the assistance of an architect's determination. Our decision is that this clause should bear the wording of the District Judge's alteration, and we agree that it is reasonable to require a property to be suitable to the surrounding area, even where that area contains a number of different types of premises. Commonsense, together with negotiation, if necessary, with the local authority could readily determine that position."

43. The references to "the assistance of an architect's determination" if necessary, and to "negotiations if necessary", do provide some basis for Mr Berg's submission that any assistance by an architect on negotiation with the respondent would not be necessary if the condition was stated with sufficient clarity. However, I reject this submission. In my view, it is sufficiently clear to require a property to be suitable to a surrounding area, even were that area contains a number of different types of premises. It is a matter of applying commonsense. If the appellant considers it necessary to obtain the assistance of an architect, or to discuss the matter with the respondent so that they can reach agreement, then he can do so. Miss Fitzpatrick observes the insertion of words referring to "obtaining the assistance of others" are intended to assist the appellant to form a view that he should be able to form as a matter of commonsense. Obviously a degree of subjectivity enters into the assessment of whether the assessment is done in a manner appropriate to the property in the surrounding area. But, in my view, that does not make the condition unclear, imprecise and ambiguous. Accordingly, in my judgment the answer to question 5 is 'yes'.

Question 6

44. Mr Berg submitted that the slightly rotting or broken woodwork covers a party or shared wall structure, straddling (common to) two properties, 575 and 577 Liverpool Road. Neither the owner nor the tenant of 575 Liverpool Road has been served with a notice or been made a party to the proceedings. The Crown Court held that it was not in a position to determine the dispute as to the boundary line, but if the frontage does cross over into that boundary line it does so to a minimum degree. Mr Berg submits even if this be so, the owner of 575 has a right to be heard in relation to any work that the court is minded to order in relation to its property. The property rights of the owner of 575 are being interfered with and the Human Rights Act is not subject to de minimis exception.
45. In my judgment, the Crown Court was entitled to take the view, on the evidence, that if the frontage did cross over a borderline, it did so to a minimum degree, and it did not make the condition unlawful. There was in fact no finding by the Crown Court, as the question suggests there was, that the third party's rights were extinguished de minimis.
46. In my view, on the basis of the findings made by the Crown Court, there was no interference with any such rights at all. It there had been, such interference could no doubt have been justified in the public interest for the purpose of the enforcement of the lawful, as I find it, section 215 notice.
47. The answer to question 6, therefore, is that on the facts the Crown Court does not accept that a third party's rights have been extinguished without him having the opportunity to be heard by a judge, who decides those rights. On the evidence, all the Crown Court decided was that that if the frontage does cross over the boundary line, it does so to a minimum degree. The Crown Court was not accepting that the rights of a third party had been extinguished.

Question 7

48. Mr Berg submits by reference to the terms of section 217(4) in particular that if there is any defect or error in the notice which is material and therefore cannot be corrected by the Magistrates' Court, then the section 25 notice as a whole is invalid. In the present case, he submits, where five out of the six conditions (that is of five numbered conditions and the condition as to the time in which the steps must be taken) have been deleted or amended, the individual deletions or amendments, or at the very least the cumulative effect of the deletions and amendments, must amount to a material defect or error in the notice and therefore the notice should be quashed.
49. Miss Fitzpatrick submits that the notice should not have been quashed at any time on the basis of material error or defect, and that the alterations that were made to the conditions could not be termed material defects rendering the entirety of the notice unlawful. The decision in Toni and Guy (South) Limited v London Borough of Hammersmith and Fulham [2009] EWHC 203 (Admin) does not, in my view, assist the appellant. In that case, the section 215 notice required the tenants of the ground floor and basement to undertake maintenance to only the first, second and third floors of the same building of which they were neither the owners nor the tenants. The ground floor in that case was not in such condition as to cause harm to amenity. In the present case it is an agreed fact that the appellant is the owner of the land which is the subject of the appeal. The amendments to the 215 notice by the deletion of conditions 3 and 4 could accordingly be made by the withdrawal of those conditions to which no objection was taken by the appellant. Alternatively, it could have been done by the Magistrates' Court using its powers under section 217(5). The other conditions in relation to the land to which the appellant is the owner are properly imposed, as amended, and there was no basis for quashing the notice as a whole.
50. Mr Berg submits that section 217(5) only applies if there is a non-material defect. He suggests the Allsop decision assists him in this regard. I disagree. The notice in that case was quashed on the particular facts of the case, see paragraphs 31 and 34-36 of the judgment. The decision of Leggatt J does not support Mr Berg's submission that section 217(5) only applies where there is a non-material defect. In my judgment, the notice should not now and should not have been quashed on the basis of material error or defect. No objection was taken by Mr Berg to the withdrawal of conditions 3 and 4 at the commencement of the hearing before the Magistrates' Court. If objection had been taken, the respondent could have withdrawn the section 215 notice and served a fresh notice. Alternatively, the respondent could have indicated the position it was proposing to adopt to the District Judge, and invited him to make an order under section 217(5) amending the section 215 notice in Mr Berg's favour.
51. As to the further amendments made to conditions 2, 4 and in relation to the period of 28 days for the taking of the steps, the amendment, at least in relation to condition 5, could have been taken under section 217(4) or under section 217(5) in relation to all the amendments as being amendments in Mr Berg's favour. Accordingly, the answer to question 7, in my judgment, is "no".

Question 8

52. Mr Berg submits that having regard to the maximum level of fine which may be imposed in respect of a breach of a section 215 notice, the award of costs made by the Magistrates' Court and the Crown Court are disproportionate, unjust and incorrectly assessed in principle. The respondent, Mr Berg submits, lost two of their five schedule of work stipulations, (conditions 3 and 4), in the Magistrates' Court there were amendments made to two other conditions, (condition 2 and the 28 days' period). Further, in the Crown Court condition 5 was amended in the appellant's favour. Mr Berg submits that if prohibitive disproportionate costs are awarded, the Article 6 ECHR rights of the recipients of such notices will be breached because they will not be able to afford to contest such notices.
53. Miss Fitzpatrick submits that the order for costs made against the appellant, (excluding the VAT element for counsel in the Crown Court), was appropriate in all the circumstances and that the Crown Court considered the relevant criteria and the case law before making the order.
54. It is conceded by the respondent that VAT should not have been included within the application for costs against the appellant. However, without the VAT element of counsel's fees, the total cost of the appeal to the Crown Court would have been in the sum of £6,103.15; that being so, Miss Fitzpatrick submits the sum of £4,000 which was awarded is, even excluding VAT from the total, an appropriate sum.
55. At paragraph 73(b) of the case stated it is noted that the Crown Court viewed the costs order as taking appropriate account of the extent to which the appellant's arguments had succeeded at the appeal.
56. The proper approach to the question of costs in cases involving appeals against decisions made by local authorities was considered in City of Bradford Metropolitan District Council v Booth [2001] LLR 151. Recently the principles have been considered by the Court of Appeal in R (Perinpanathan) v City of Westminster Magistrates' Court and Metropolitan Police Commissioner [2010] EWCA Civ 40. The courts have a broad discretion as to costs. The principles set out by Lord Bingham in City of Bradford, in my judgment, apply equally to appeals brought pursuant to section 217 and 218 of the Town and Country Planning Act 1990 to the Magistrates' Court and the Crown Court respectively. As Ms Fitzpatrick observes, Mr Berg has sought to argue that the costs of bringing an appeal in this case should be proportionate to the subject of the appeal. Following his approach, the total costs should be no more than the costs of taking steps 1, 2 and 5, which he estimated at a few hundred pounds. If that was so, he would have been enabled to cause great expense to the respondent by appealing the decision of the Magistrates' Court without incurring any expense himself.
57. There is, in my view, no basis for interfering with the costs order made by the Crown Court. The court received detailed written submissions on costs from the parties. Those from Mr Berg are at pages 85 to 91 in the bundle, and from Ms Fitzpatrick at pages 92 to 101. Mr Berg addressed in his submissions the issues that he has raised before this court. In particular, it is clear that the court had regard to the success that he had in deleting and varying the requirements of the notice. The court has given reasons for its decision in a judgment which is at pages 115 to 117 in the bundle, and in an undated letter in response to Mr Berg's request that the court state a case at pages 142 to 143. In my judgment, the principles relating to cost orders are well-established, and the Crown Court did not err in their application. In making a costs order, the court has a wide discretion and will take into account the means of the parties. Accordingly, I answer question 8 in the negative.
58. For the reasons that I have given, this appeal fails.

Mr Berg, I know it is of little comfort, but can I thank you for the very clear way you have made your submissions to this court, both orally and in writing.

MR BERG: The first thing is it carries huge issues of importance, saying that there is no limit to improvements. So I am asking for permission to go to the Supreme Court. I mean, even the Bradford precedent is –

MR JUSTICE SUPPERSTONE: I assume you are asking to go to the Supreme Court rather than the Court of Appeal on the basis that this is a criminal cause or matter, and therefore it is an appeal to the Supreme Court not to the Court of Appeal.

MR BERG: The basis, as I understand it, is that I do not think there is a further appeal in a case stated to the Court of Appeal, only to the Supreme Court.

MR JUSTICE SUPPERSTONE: That is right, Ms Fitzpatrick, is it not?

MS FITZPATRICK: As I understand it, yes, my Lord.

MR JUSTICE SUPPERSTONE: Absolutely. I have to be satisfied, Mr Berg, that there is a point of law of general public importance and that it is an appropriate case for the matter to be considered by the Supreme Court. I am not so satisfied on either limb, and that being so, it will be a matter for you to apply to the Supreme Court. I cannot, I am afraid, give you advice as to how to go about it, but as I think you will probably know, you have to identify the precise questions that you say raise points of general public importance and why your case should go to the Supreme Court. The only other thing I would say to you is look carefully at the time limits as well.

MR BERG: Yes, because it is necessary, as I understand, to go to the Supreme Court before asking to go to a European court.

MR JUSTICE SUPPERSTONE: Again, I will not comment on that.

MR BERG: Or apply at any rate.

MR JUSTICE SUPPERSTONE: I will not comment on that, I will leave that for you, but hopefully I have been of some assistance, but I refuse permission from this court.

MR BERG: I mean, the second matter is there is some confusion at the end of it because the position as the judge had said, having answered question 4 about the time, the appropriate time, she gave the judgment as was appropriate on December 2010, but the works had been done, or at least the changes had been done, it is no longer appropriate to put boarding on, and there is no boarding, as at the time she gave judgment until as of now.

MR JUSTICE SUPPERSTONE: Mr Berg, I have given judgment. I do not think I can take the matter any further.

MR BERG: Yes, well, as I say, it is a practical matter on that. I mean, we are both agreed in a view which is contrary to what the judge explicitly said in paragraph 49 of the stated case.

MR JUSTICE SUPPERSTONE: Let me just ask Ms Fitzpatrick this question: is Mr Berg raising a matter that is a matter for this court?

MS FITZPATRICK: In my submission, no, following your Lordship's judgment this afternoon.

MR BERG: Basically it is asking within two months to put up boarding. There is no boarding because it has been changed to strengthened glass. To repair woodwork which no longer -- apart from the shared thing -- actually does not exist any longer.

MR JUSTICE SUPPERSTONE: Mr Berg, I do not mean to be difficult, this case has come before this court on a case stated and I have heard argument and dealt with the case stated and questions that have been raised. If there are any other matters to be raised subsequent to this decision, then I must leave it to you to decide how best to raise them. But, my understanding is that there are no further matters for this court.

MR BERG: My Lord, I put in a parallel submission which of course is not part of the case and although you have agreed primarily with the judge in her judgment, there were other matters which I put in.

MR JUSTICE SUPPERSTONE: Just to assist Mr Berg, because he is a litigant in person, if there is any concern that he has now about the notice that has been upheld, which is the proper forum for him to raise any concern that he has?

MS FITZPATRICK: Certainly the Council would be willing to speak to him.

MR JUSTICE SUPPERSTONE: That is very helpful, and that must be a sensible first step. Mr Berg, it is not for me to tell you how to conduct matters, but in the first instance you may think that if you have any queries, any concerns, about the notice as it presently stands, you would be well advised to take up the offer that I am sure has been made on behalf of the Council that raise -- and I see nods of assent -- that you raise these matters with the Council in the first instance. Let us not have any further court hearings which may not be necessary.

MR BERG: Yes.

MS FITZPATRICK: My Lord, due to the appeal having been dismissed, I apply for costs against the appellant, Mr Berg.

MR JUSTICE SUPPERSTONE: Yes, do I have a statement of costs?

MS FITZPATRICK: A schedule of costs has previously been submitted.

MR JUSTICE SUPPERSTONE: I wonder whether you could hand up another one. I am sure if you say that it has been -- Mr Berg, do you have a copy of this?

MR BERG: Yes. I presume I do, yes.

MR JUSTICE SUPPERSTONE: I have received two copies, I think.

MS FITZPATRICK: Yes, one was for the court and the other for your Lordship.

MR JUSTICE SUPPERSTONE: For Mr Berg?

MS FITZPATRICK: No, the third copy has gone to Mr Berg.

MR JUSTICE SUPPERSTONE: I see, right. So I will give one to the court clerk, and I have one and it is a total of £4,721.38.

MS FITZPATRICK: Yes, related only to this appeal by way of case stated.

MR JUSTICE SUPPERSTONE: Only to this appeal. Can I take it in stages, Mr Berg, with you. First, as a matter of principle, do you accept or not that you are liable for costs? Before you answer that question, let me tell you what the second question is going to be so you know the context in which you are answering the first question: I am then going to ask you about quantum, the amount of costs. So take it in stages. Do you accept costs follow the event; you lost the appeal and they are entitled to their costs?

MR BERG: On the basis of a full loss, yes, I would normally be liable. As you accepted, the previous thing, in this type of hearing, subject of course to if the Supreme Court –

MR JUSTICE SUPPERSTONE: Of course what happens elsewhere subsequently is not something I can deal with. So, Ms Fitzpatrick, you are entitled to your costs. The question now is the amount. Have you had an opportunity to consider this schedule?

MR BERG: I have had the opportunity to consider the schedule as far as it relates to £4,721.

MR JUSTICE SUPPERSTONE: Are there any points that you wish to make about it?

MR BERG: Well, I am not sure how far counsel's fees are reasonable. I appreciate that she has done quite a bit of work. I do not think the in-house timings, or the fee rate was previously £48 a hour for the same person. They are now wanting £73 an hour and the hours are very excessive considering that counsel did practically all of the work. I do not know what 11 hours for correspondence and case conduct amounts to, as well as research, work done on documents, and even more general advice assistance. That would probably be the other way around. I do not see what advice there was. At this level, attendance of court is more arguable than the lower levels for the paralegal.

MR JUSTICE SUPPERSTONE: So there are some detailed questions to consider that you, of course, Mr Berg say are points of very considerable importance. So that being so, you may think that the Council were certainly entitled to consider the matter with care, and take proper advice and you have not objected, rightly, to counsel attending. These are the costs of the whole hearing before me.

MR BERG: What I am saying is that I acknowledge that counsel, Ms Fitzpatrick, did a lot of work considering the amount of the work, but I do not see that the in-house did anything very much and I do not see why the rates should be raised from £48 to £73.

MR JUSTICE SUPPERSTONE: Let me ask Ms Fitzpatrick then about that. Ms Fitzpatrick, any reason for that, the hourly rate?

MS FITZPATRICK: Yes, my Lord.

MR JUSTICE SUPPERSTONE: I am not observing whether one rate is right or wrong, what is the reason for a change in rates?

MS FITZPATRICK: The charges for using legal services were covered by the Commissioning Agreement which came into effect on 1 April 2012. The only exceptions to that will be where the work involves complex commercial advice, which would previously be outsourced, and any such cases will be charged at the blended rate of £73 per hour. Previously there was a scaled hourly rate and due to the fact that a legal officer rather than a solicitor attended court, the hourly rate was previously only £48, whereas now it is a flat rate of £73 per hour.

MR JUSTICE SUPPERSTONE: Just looking at the individual items under in-house, correspondence and case conduct, what does that relate to in terms of the appeal by way of case stated? We have got through the Magistrates' Court, we got through the Crown Court, the case stated is a case stated that has been stated. I ask on Mr Berg's behalf what is the correspondence and case conduct amounting to 11 hours, say £70?

MS FITZPATRICK: Each time Mr Berg wrote to Minshull Street Crown Court, Minshull Street Crown Court provided a copy of his letter, and each time when Mr Berg wrote to the Council, the Council then needed to provide his correspondence to me and also to appropriately respond as and when required.

MR JUSTICE SUPPERSTONE: Right. General advice assistance, £420?

MS FITZPATRICK: Upon receipt of various documents, my Lord, I contacted those who instruct me to discuss various issues and in addition to providing correspondence, those who instruct me also contacted me on numerous occasions over the last few months.

MR JUSTICE SUPPERSTONE: Then we have attendance at court, that is just the number of hours multiplied by the flat daily rate, or hourly rate which you have explained and some work done on documents which one would expect. Mr Berg, nothing stands out, as I look at this document, as being unusual or unreasonable. I have tried to raise a few points on your behalf. Can you tell me is there an issue of means that means as a result of which you cannot afford this sum, or is it just a question of perfectly properly trying to see whether it is a proper sum.

MR BERG: It is trying to see whether it is a proper sum. Basically letters are only allowed into one hour only six minutes at a time. There were not very many letters, even if she received it and a few documents which I passed on to her, duplicates on the court which were passed state to Ms Fitzpatrick. I mean, six minutes a time, which would be the commercial rate, the fact of the matter, although it is the now blended at £73 an hour, they used the most junior paralegal, a trainee solicitor as they had used in the previous case. So I do not think some of the items -- in the context of counsel drafting all the documents, doing all the research and doing all the work, that is at all reasonable in time, and in the circumstances, not the full amount. Basically my view is that apart from the attendance at court, which is about £500 or £600, £1,000 should cover the legal costs of Manchester City Council more than adequately.

MR JUSTICE SUPPERSTONE: Thank you very much. Anything further?

MS FITZPATRICK: Yes, my Lord, two issues. First, a legal officer has undertaken a great deal of the in-house work and attended court on both hearings. However, also a senior solicitor has been instructing me and he attended court on the first day of this appeal. The second issue, my Lord, is in relation to my work which concludes with attendance at court on the two days on which this appeal by way of case stated has taken place, and does not include the preparation I undertook immediately before 16 May, or any of the preparation I have undertaken between the two hearing dates.

MR JUSTICE SUPPERSTONE: Thank you very much. I do not consider these costs to be unreasonable, and I have looked at the individual elements. I am satisfied that they have been properly incurred. In those circumstances, I order that the appellant pay the respondent's costs in the sum of £4,721.38.

MS FITZPATRICK: I am obliged to your Lordship.

MR BERG: Can I raise one more issue?

MR JUSTICE SUPPERSTONE: Yes, certainly.

MR BERG: In the Crown Court hearing I was very annoyed that they are claiming for 16 hours of attendance when there was only ten hours in court.

MR JUSTICE SUPPERSTONE: That is a fair enough point for you to take, yes, without being factually correct.

MR BERG: And when I got elucidation, attendance at court apparently for a court which if she attended from 11 o'clock to -- 11.30 to 1 o'clock counted as from 9 o'clock to 2.30, which is plain dishonesty.

MR JUSTICE SUPPERSTONE: Well, that is not a point that has been raised so far, Mr Berg. Mr Berg, the total number of hours of attendance at court, 16 and 21 May, the approximate times of six hours and three hours, if you put the number of hours together, when you are actually being present at court, I think we started at quarter to –

MR BERG: No, I am referring to the Crown Court.

MR JUSTICE SUPPERSTONE: I quite understand, but looking at the hours in this schedule and the figures in this schedule, I consider the costs sought to be proper.

MR BERG: I am not complaining about this issue in this schedule, but an issue of dishonesty where we have got a potential solicitor, should be dealt with –

MR JUSTICE SUPPERSTONE: Mr Berg, there is nothing further that I can deal with today in relation to the matters before me. You have not -- and correct me if I am wrong -- but it was not part of your case on costs in the case stated that there was dishonesty and therefore the sums should be reduced.

MR BERG: I put it as an element of it, amongst many other elements. I did mention it in my submissions in the case stated in the written submissions.

MR JUSTICE SUPPERSTONE: I am not prepared to reopen the answer that I gave.

MR BERG: I mean dishonesty –

MR JUSTICE SUPPERSTONE: Mr Berg, let me finish, I am not prepared to reopen the answer that I gave on question 8, on my analysis of question 8.

MR BERG: Dishonesty in a potential solicitor is a serious matter which is too rife.

MR JUSTICE SUPPERSTONE: Mr Berg, any complaint I must leave to you to pursue elsewhere. Thank you very much.