England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/02/2018

Mrs Justice Cheema-Grubb :

1. This is an application for judicial review concerning the construction of the word "repair" in an enforcement order (EN) issued by a planning authority against a developer who was in breach of planning regulations.
2. The claimants, a company and its managing director, purchased a terraced residential property in the St John's Grove conservation area in North London intending to renovate it and resell. In October 2014 render was applied to the exterior of the building and subsequently painted. Planning permission was not sought for this procedure. In January 2015 an application for retrospective planning permission was submitted. This was refused on 20 March 2015 on the basis that the 'proposed' works would have a detrimental impact on the visual appearance of the building and cause unacceptable harm to the character and appearance of the conservation area. An appeal against this refusal was itself refused on 19 October 2015.
3. Before that latter date, on 2 July 2015 the London Borough of Islington issued an EN. That notice was not appealed and compliance was required by 13 October 2015.

The notice provided as follows:

"SCHEDULE 2

The alleged breach of planning control

Without planning permission, the installation of light-coloured rendering and white colour paint over existing brickwork on the premises on the land.

SCHEDULE 3

Reasons for issuing this notice

(ii) the rendering of the building elevations results in a detrimental impact on architectural integrity of the property and the character and appearance of the wider conservation area. The unauthorised development fails to preserve and enhance the character and appearance of St John's Grove conservation area…

SCHEDULE 4

What you are required to do to remedy the breach

(i) Remove the concrete render from all elevations of the premises, including all waste materials therefrom

(ii) repair any damage to the facing fabric of the building caused by taking step (i) with the materials to match existing."

4. The claimants were pursued for a failure to comply with the notice and on 31 August 2016 informations were laid pursuant to s.179 (1) and (2) of the Town and Country Planning Act 1990 alleging that:

"On or about 14 October 2015 [1^st claimant] being the owner of [address] breached an Enforcement Notice… issued on 2 July 2015 in respect of unauthorised developments at [property]… by failing to comply with the remedial action required in…… of the Enforcement Notice, contrary to s.179 (1) and (2) of the Town and Country Planning Act 1990."

and

"On or about 14 October 2015 [2^nd claimant] acting as a director of…… , which with your consent or connivance or attributable to your neglect breached an Enforcement Notice…… Contrary to s.331 read with section 179 (1) and (2) of the Town and Country Planning Act 1990."

5. A trial took place on 13 March 2017 and the claimants deployed the defence in s. 179 (3) TCPA. The works required under the EN had not been carried out by that date and it was conceded that the defences of both claimants stood or fell together. The single issue for District Judge Rimmer was whether it was impossible for the 1^st claimant to comply with the EN, so that the statutory defence applied. The claimants asserted they had done everything that they could reasonably be expected to do to secure compliance and relied upon evidence from an expert in the maintenance and refurbishment of listed buildings to the effect that that the removal of the render would irreparably damage the bricks beneath necessitating the demolition and rebuilding of the entirety of the exterior walls.
6. Dr Keith Farmer of Keith Farmer Building Services Ltd was instructed in December 2015 and provided the claimants with a report in early 2016. His opinion was that "the application of the bright white paint to render is extremely regrettable on the front elevation" but that "removal of the render will irrevocably damage the faces of the bricks to the extent that all will have to be replaced". Dr Farmer suggested two courses of action. The first would require the removal of the render, demolition of the walls and rebuilding in new/second-hand bricks. The second option was to conserve the original brickwork by carrying out some form of cosmetic treatment to the render. It was agreed at trial that the second option would not have satisfied the EN. The claimants obtained quotations for the necessary work.
7. The District Judge construed the word "repair" to include, in the context, the rebuilding of the front and rear walls of the property with replacement bricks. He concluded that the allegations were made out and the statutory defence failed.
8. On 7 April 2017 the claimants' solicitors invited the District Judge to state a case for the opinion of the High Court in accordance with R35.2 of the Civil Procedure Rules. The proposed questions for the High Court were:

"(1) did I err at paragraph 21 of my judgement in finding that the word "repair" in the enforcement notice, encompassed demolishing and rebuilding the walls in new/second-hand bricks?

(2) did I err at paragraphs 23 and 24 of my judgement in taking into account that the council's deputy team manager for conservation and design had no objection to the walls of the property being rebuilt with replacement bricks?"

9. The judge refused to state a case. In his decision of 9 May 2017 he recognised that s.111 (5) Magistrates' Courts Act 1980 allows for the refusal of an application to state a case where the application is frivolous. He applied the Mildenhall Magistrates' Court ex parte Forest Health District Council (1997) 161 JP 401 definition of a frivolous application to state a case: futile, misconceived, hopeless or academic. He was not persuaded that the questions suggested by the claimants addressed genuinely arguable errors of law, decisions taken in excess of jurisdiction, or findings of fact that no reasonable bench could properly have reached on the evidence before it. Concluding that the application was misconceived he responded to the proposed questions and repeated his conclusion that the word "repair" encompassed the rebuilding of the walls of the property and that the claimants were not in any way incapable of compliance with the EN. He observed "in the context of repairing a brick wall damaged by render applied by [the claimants] without planning permission," damage to the facing fabric "inevitably means damage to the bricks, and to repair…. with materials to match existing" includes using replacement bricks."
10. Proposed Question 1 was therefore a matter of interpretation of the plain, straightforward and unambiguous terms of the EN. In respect of Question 2 (which has fallen away), he could see no legal reason why he ought not to have taken into account the views of the authority's officers and no issue as the admissibility of that evidence had been taken at trial.
11. Permission for judicial review was sought by application received on 10 August 2017. There were 4 proposed grounds the first concerning the District Judge's construction of the word "repair". Secondly, an adverse finding based upon the claimants' representation when applying for retrospective planning permission, (that the works had not yet been completed). Thirdly, that irrelevant matters were taken into account by the District Judge and, finally, that he took into consideration irrelevant matters when refusing to state a case for the High Court. The defendant court did not file an Acknowledgement of Service but the Interested Party, the planning authority, has contested the proceedings on the basis that the claim is unarguable.
12. The application was refused by Judge Elizabeth Cooke sitting as a deputy Judge of the High Court on 2 October 2017. She stated in respect of the first question, the meaning of the word repair,

"I take the view that the District Judge's decision not to ask that question of the High Court was entirely rational. The enforcement notice contemplates on its face the replacement of the bricks, and the claimant's discovery-on seeking expert advice as to how to comply with the notice-that bricks would need to be replaced cannot have come as a surprise to them. The expert's advice did not require "the entire demolition and rebuilding of a structure" as the claimants' state [this was from paragraph 25 of the Grounds]. The meaning of the word "repair" is context specific and there is no basis for review of the District Judge's decision not to consult the High Court on the point."

13. The claimants exercised their right to seek an oral renewal of the application for judicial review which was heard by Alexandra Marks CBE sitting as a deputy Judge of the High Court on 25 October 2017. Permission was granted on proposed grounds 1 and 4 the basis that because non-compliance can lead to criminal conviction it is appropriate for the High Court to hear argument and consider whether the EN could be complied with or if, because the works needed went beyond the scope of the word "repair", the steps set out in the EN were insufficiently specific for the recipient to know what was required of him to achieve compliance.
14. As the District Judge had given a reasoned judgement which contained all the necessary findings of fact and identified the point of law in question in his refusal to state a case it was appropriate to grant permission for judicial review in light of the Divisional Court's judgement in Blackfriars Crown Court, ex-party Sunworld Ltd [2000] 2 All ER 837.

The statutory framework

15. Section 173 TCPA 1990 provides:

Contents and effect of notice.

(1) An enforcement notice shall state –

(a) the matters which appear to the local planning authority to constitute the breach of planning control; and

(b) the paragraphs of section 171A (1) within which, in the opinion of the authority, the breach falls.

(2) A notice complies with subsection (1) (a) if it enables any person on whom a copy of it is served to know what those matters are.

(3) An enforcement notice shall specify the steps which the authority require to be taken, or the activities which the authority require to cease, in order to achieve, wholly or partly, any of the following purposes.

(4) Those purposes are –

(a) remedying the breach by making any development comply with the terms (including conditions and limitations) of any planning permission which has been granted in respect of the land, by discontinuing any use of the land or by restoring the land to its condition before the breach took place; or

(b) remedying any injury to amenity which has been caused by the breach.

(5) An enforcement notice may, for example, require –

(a) the alteration or removal of any buildings or works;

(b) the carrying out of any building or other operations;

(c) any activity on the land not to be carried out except to the extent specified in the notice; or the contour of a deposit of refuse or waste materials on land to be modified by altering the gradient or gradients of its sides.

(6) Where an enforcement notice is issued in respect of a breach of planning control consisting of demolition of the building, the notice may require the construction of the building (in this section referred to as a "replacement building") which, subject to subsection (7), is as similar as possible to the demolished building.

(7) [Not relevant]

(8) an enforcement notice shall specify the date on which it is to take effect and, subject to sections 175 (4) and 289 (4A), shall take effect on that date.

(9) An enforcement notice shall specify the period at the end of which any steps are required to have been taken or any activities are required to have ceased and may specify different periods for different steps or activities; and, where different periods apply to different steps or activities, references in this Part to the period for compliance with an enforcement notice, in relation to any step or activity, or to the period at the end of which the step is required to have been taken all the activity is required to have ceased.

(10) An enforcement notice shall specify such additional matters as may be prescribed, and regulations may require every copy of an enforcement notice served under section 172 to be accompanied by an explanatory note to giving prescribed information as to the right of appeal under section 174.

(11) Where –

(a) an enforcement notice in respect of any breach of planning control could have required any buildings or works to be removed or any activity to cease, but does not do so; and

(b) all the requirements of the notice have been complied with,

then, so far as the notice did not so require, planning permission shall be treated as having been granted by virtue of section 70 3A in respect of development consisting of the construction of the buildings or works or, as the case may be, the carrying out of the activities.

(12) [Similar provision to ss.(11) in respect of replacement buildings.]

16. Section 179 – Offences where enforcement notice not complied with.

(1) Where, at any time after the end of the period for compliance with an enforcement notice, any step required by the notice to be taken has not been taken or any activity required by the notice to cease is being carried on, the person who is then the owner of the land is in breach of the notice.

(2) Where the owner of the land is in breach of an enforcement notice he shall be guilty of an offence.

(3) In proceedings against any person for an offence under subsection (2), it shall be a defence for him to show that he did everything he could be expected to do to secure compliance with the notice.

The judgement of the District Judge

17. District Judge Rimmer heard the trial on 13 March 2017 and took time to consider his judgement which was promulgated on 21 March 2017. He heard evidence from 3 witnesses including an employee of the First claimant.
18. At paragraphs 15-17 of his judgement the learned District Judge summarised the principles deriving from 3 authorities: Sevenoaks District Council v Harber [2008] EWHC 708; R v Beard [1997] 1 PLR 64 and R v Clarke [2002] EWCA Crim 753. The 2^nd and 3^rd principles in the Sevenoaks case are that before the statutory defence can arise, the owner must show that compliance with the notice is not within their powers and that the relevant question is whether the defendant is incapable of compliance, not whether there is a reasonable excuse for non-compliance. The defence is concerned only with the ability to comply not wider issues such as hardship or reasonableness of compliance. The phrase "… everything he could be expected to do" must implicitly be read applying an objective criterion of reasonableness having regard to all the relevant circumstances.
19. The claimants argued that the wording of the EN specified repair but the work required to remedy the breach of planning regulations amounted to demolition and re-building of a type that requires planning permission. Evidence from the planning authority demonstrated that no planning permission would have been required to demolish the front and rear walls as part of complying with the EN because the same would have been deemed granted under s.173(12) and s.73 TCPA. Indeed, subsequent correspondence between the parties demonstrated that the planning authority envisaged that complying with the EN would require reconstructing the walls. The claimants have not challenged the judge's acceptance of that evidence and I observe that no planning application was ever made by the claimants in any event. Having considered ss.55, 173 and 336 TCPA the judge found the submission based on s.55 to be no more than 'tactical semantics'. He held,

"The submission relying on s.55 to posit that repair involves "works which …..do not materially affect the external appearance of the building" holds little weight in circumstances where that affect would be aimed at restoring its previous appearance in a conservation area. I find no difficulty with interpreting the wording of the EN and find on the fact of this case that "repair" encompasses the rebuilding of the walls with matching bricks if that proved necessary."

The hearing

20. Miss Murphy encapsulated her submissions helpfully. Her main argument is that the TCPA provides a scheme which recognises a clear distinction between repair as against demolition and rebuilding. The former being akin to works of maintenance or alteration. Accordingly, repair must be restricted to a meaning less extensive than demolition and rebuilding. She developed this point by inviting an examination of part of the statute concerned with the meaning of development.
21. Section 55 TCPA headed "Meaning of "development" and "new development"", provides

(1) subject to the following provisions of this act, in this act, except where the context otherwise requires, "development" means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.

[(1A) For the purposes of this Act "building operations" includes –

(a) demolition of buildings;

(b) rebuilding;

(c) structural alterations of or additions to buildings; and

(d) other operations normally undertaken by a person carrying on business as a builder.]

(2) the following operations for uses of land shall not be taken for the purposes of this act to involve development of the land –

(a) the carrying out for the maintenance, improvement or other alteration of any building of works which –

(i) affect only the interior of the building, or

(ii) do not materially affect the external appearance of the building,

and are not works for making good war damage or works begun after 5 December 1968 for the alteration of the building by providing additional spaces in it underground: …….

22. Although she concedes that the word repair is not used in s55 TCPA she submits that the only sensible meaning of the word must be limited to something less than any work that could be described as demolition/rebuilding. To decide otherwise would be inconsistent with the ordinary understanding of the word.
23. The difficulty with this argument is that it is entirely divorced from the facts. Words have meanings in their context. The meaning of even a familiar word will vary according to when it is used. In the context of a notice requiring the claimant to remedy a breach of planning regulations what repairs are necessary will depend on the extent of the breach. In this case the entirety of the walls concerned had been rendered and painted and so any repair could well encompass them entirely. As the District Judge found, the report of Dr Farmer, obtained well after the compliance period for the EN had elapsed, could not have come as a surprise to the claimants'.

I do not find the claimants' reliance on Street v Essex County Council (1965) 193 EG 537 decided (on fore-runner sections to s.55) of any more assistance. Miss Murphy argues that even if it were a matter of fact and degree, the works required under the EN were well outside what would properly be characterised as repair. Mr Street owned a building which was due to be demolished. He obtained a stay of the order on the basis that he would undertake repairs in accordance with the local bye-laws. Although he started off the work intending to repair it the building had to be demolished down to its damp proof course to construct what the planning authority said was a new building. He was served with an EN requiring him to demolish the development because what he had done amounted to development rather than repair. He sought to argue that all he had done was repair the condemned building. His appeal against the EN failed. Lord Parker, giving the judgment observed that whether the works could fairly be said to amount to maintenance or were properly called reconstruction must be matter of fact and degree. In this case, the claimants' had been served an EN which, required them to deal specifically with the breach they were responsible for. Miss Murphy conceded that by s.173(5) an EN could require works that would otherwise require planning permission.

24. The claimants knew what had been done to the walls and they knew from the EN that removal of the render and replacement of the underlying bricks might be necessary. The District Judge did not err in law in deciding that it was entirely possible for them to comply with the EN without straying into development of the building. Furthermore, as Mr Drabble QC pointed out, Street does not assist the claimants even on the basis of a comparison as to degree of interference with the original building: in the claimants' case a maximum of two external walls would be rebuilt rather than the entire building brought down.
25. If the claimants were unclear as to what was required under the EN it could have been the subject of an appeal. But Miss Murphy argued that construing the EN as the District Judge did he could not have expected the claimant to have appealed against it because it wasn't until Dr Farmer provided his report that the degree of interference with the necessary under the EN became apparent. That uncertainty, what is being called lack of specificity, also rendered his broad reading of repair, illogical and unfair. I remind myself that one of the steps set out in the EN to remedy the breach of planning control was to "Repair any damage to the facing fabric of the building caused by [ removing the render] with material to match existing" and I reject this argument. The fact that, long afterwards, the claimants commissioned and obtained a report, which contained no revelation beyond the opinion specifically foreshadowed by part of the EN is not capable of rendering the EN unspecific.
26. Finally, Miss Murphy sought to persuade me that because the criminal sanction flows from a breach of an EN reading the word repair broadly and holding that it implicitly included such drastic work as Dr Farmer advised infringes the principle that enforcement notices must specify the steps required. Put simply, a criminal sanction can only be applied if the notice is sufficiently clear about what it requires.
27. The narrow issue for me to consider is whether the EN which required the claimants to repair the property could properly be understood to encompass demolition and rebuilding of the front and rear walls which had been rendered, particularly in light of the location of the property within a conservation area so that in normal circumstances such work would require planning permission. The planning controls regime is well-trodden and comprehensive. The point raised in this claim is straightforward. I have no hesitation in concluding that the meaning of the word "repair" in the EN is sufficiently clear for the purposes of a criminal enactment and that the District Judge's interpretation of it is one that was reasonably open to him.
28. There is no definition of repairs within the TCPA scheme. This must be because the draughtsman and Parliament considered it unnecessary for further definition to be provided. Repair is an ordinary English word. Its meaning is context specific. In the context of an EN issued because of a breach of planning procedure common sense indicates that the only repair that will satisfy the notice will be one that makes good the activity that has led to the breach. In the claimants' situation they had applied render to the entirety of the front and rear elevations of a terraced Victorian house. In order to repair that breach the entirety of those two exterior walls may be involved. The terms of the notice itself make clear that the repair envisaged by the planning authority, should damage be caused to the facing fabric of the building while the render was being removed, extended to employing materials to match the existing walls. In short, as the breach was over all of both walls, so the repair may have involved all of the two walls in question. In the context of the claimants' case even if the repair amounted to demolition and rebuilding of those two walls that did not prevent it being a repair.
29. Equally, it was for the claimants themselves to comply with the Notice and its requirements were clear. Even if the report from Dr Farmer had been obtained within the time limit for an appeal against the notice it is hard to see how the claimants could have succeeded in challenging the notice on the basis that it was too onerous. Again, the question is a simple one as the breach encompassed the total exterior elevations the remedy for the breach had to encompass the same area.

Decision

30. In context, the terms of the EN were crystal clear. The District Judge made no error in finding that 'Repair' encompassed rebuilding two walls, if necessary. There was no lack of specificity and this claim must be dismissed.