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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Toni & Guy (South) Ltd & Anor v London Borough of Hammersmith and Fulham [2009] EWHC 203 (Admin) (11 February 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/203.html Cite as: [2009] EWHC 203 (Admin), [2009] 7 EG 91

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/02/2009

Mr Justice Wyn Williams :

1. This is an appeal by case stated against the decision of District Judge Sweet given on 6 February 2008 at West London Magistrates' Court whereby he dismissed the Appellants' appeal against a notice served by the Respondent pursuant to section 215 Town and Country Planning Act 1990 (TCPA 1990).
2. The relevant background facts are undisputed and can be taken from the case stated by the District Judge. I quote from paragraph 2 of the case:-

"(a). On 26 March 2006 the respondent wrote to the freehold owners of land known as 10 Fulham Broadway, London, SW6 seeking their co-operation in improving the condition of 10 Fulham Broadway. The respondent received no response from the freeholders who according to a search carried out at Her Majesty's Land Registry by the Respondent were Manmohan Singh Sehgal and Surinder Kaur Sehgal. The result of the search did not disclose that the freehold land was separated into different floors, but rather that it encompassed the whole of the land comprising 10 Fulham Broadway.

(b). On 4 September 2006 there was a further inspection of 10 Fulham Broadway which revealed that there had been no improvement in its condition. The respondent accordingly served a notice under section 215 of the TCPA on the freeholders and on all occupiers of the land requiring certain works to be carried out to the first, second and third floor levels of the building.

(c). The first appellant was and still is, a tenant of the ground floor of the building located on the land by virtue of a lease dated 18 June 2002. The said lease is for a term of 17 years and requires the First Appellant to pay a service charge contribution of 40% of the landlord's services costs. The landlords services include a covenant on the part of the landlord to:-

(i) repair and keep in good and substantial repair the exterior main walls, roofs, foundations and structure of the building.

(ii) decorate the exterior of the building (excluding those parts which it shall be the responsibility of the tenant hereunder to decorate) at such times and in such manner as the landlord shall in their discretion think fit……

(d). The first appellant sub-let the ground floor to the second appellant and the second appellant occupied the property on the date on which the notice under section 215 of TCPA was served."

3. The notice which was the subject of the appeal was issued on 3 September 2007 and served shortly thereafter. The notice was served on no less than eight parties. It was served on the freeholders, Messrs Sehgal, their mortgagees and also upon the following parties:-

"THE OCCUPIER of ground floor, of 10 Fulham Broadway, London SW6 1AA

THE OCCUPIER of first floor, 10 Fulham Broadway, London SW6 1AA

THE OCCUPIER of second floor, 10 Fulham Broadway, London SW6 1AA

THE OCCUPIER of third floor, 10 Fulham Broadway, London SW6 1AA"

4. The notice specified an area of land to which it related. The description of the land contained within paragraph 2 of the notice was "land and buildings at 10 Fulham Broadway London SW6 1AA". It has not been suggested in this appeal that the words used in paragraph 2 of the notice can mean anything other than the whole building known as 10 Fulham Broadway and the land upon which it stands.
5. The notice was served because "the poor condition of the front elevation of the building located on the land" had resulted in visual harm to the building itself and to the street scene with the further consequence that the visual amenity of the area had been adversely affected.
6. Paragraph 4 of the notice is entitled "WHAT YOU ARE REQUIRED TO DO." The following is specified:-

"The Council requires the following steps to be taken for remedying the condition of the Land:

(a) repair the render to the front elevation of the building located on the Land at First, Second and Third Floor levels;

(b) repaint the render to the front elevation of the building located on the Land at First, Second and Third Floor levels in a white colour."

7. Following receipt of the notice the Appellants instructed their solicitors. By letter dated 26 September 2007 Messrs Staal and Staal wrote to the Respondent's Legal Department enclosing a lease made 18 June 2002 between the freeholders and the First Appellant. The Solicitors pointed out that the First Appellant was the tenant of the ground floor and basement shop at 10 Fulham Broadway. The solicitors continued:-

"On the basis of the above, we cannot see how the notice applies to our client given that its requirements relate only to "the First, Second and Third floor levels" of the building. Our client is neither an "owner" nor an "occupier" of these levels as required by the terms of s.215. As a result, we respectfully submit that the notice is bad on its face in respect of our client and ask that the reference to "the occupier of ground floor" on the first page be withdrawn."

The letter went on to point out that if the reference was not withdrawn the Second Appellant would appeal under section 217 of 1990 Act and seek to recover its costs of the appeal in full.

8. The Respondent replied on 1 October 2007. It took a point about the interpretation of section 215 of the 1990 Act to which I will return below; it asserted that the notice was validly served and it alleged that there was no basis for an appeal under section 217. It ended its letter with the following paragraphs:-

"The Council acknowledges that the occupancy rights of your clients in respect of the land are limited to the Ground Floor and that this means your client does not have the ability to undertake the requested works to the other floors of the building. Thank you for providing a copy of the lease agreement which evidences the occupancy rights. The Council confirms that it will take this into account in considering liability for the enforcement of the terms of the Notice if the works are not completed within the time period for compliance stated in the Notice. Generally speaking, the Council will seek to enforce the terms of the Notice against those persons who are capable of undertaking the works."

9. Following receipt of the letter of 5 October 2007 both Appellants issued a notice of appeal on 12 October 2007(the first Appellant did so as a person interested). The grounds of appeal were set out in paragraphs 8 to 13 of the notice. Each Appellant relied, expressly, upon a ground of appeal which is contained within section 217(1)(c) of TCPA 1990 (as to which see paragraph 15 below). Each Appellant also asserted that the Respondent had misdirected itself in law in serving the notice on the Appellants when the Second Appellant was neither an owner nor occupier of the property which was subject to the enforcement notice.
10. The hearing of the appeal was scheduled for 21 November 2007. On 20 November 2007 the Respondent wrote to the Appellants' solicitors. They asserted that the appeal was misconceived – essentially because it was asserted that none of the grounds of appeal permitted by section 217 of TCP1990 were sustainable in the instant case. However by the same letter the Respondent accepted, unequivocally, that the works required pursuant to the notice related only to the first, second and third floors of the building; it accepted further that the Appellants had no control over or any rights in those parts of the building. The Respondent's letter ended with the following paragraphs:-

"To avoid any further waste of time or resources I can categorically state that in so far as your clients have no interest or control over the first, second and third floors of the property it will not take any enforcement action against them in relation to the section 215 notice save in so far as it might be necessary to inform them or seek to have them co-operate in gaining access in the event that it seeks to carry out work in default.

I trust that in the light of this unequivocal statement you will withdraw your appeal immediately and thus avoid a further waste of time and resources of the Court and parties to this appeal."

11. In the light of this letter the Appellants were prepared to withdraw their appeal but only upon the basis that the notice was formally withdrawn and the Respondent paid the costs which the Appellants had incurred. The Respondent was not prepared to withdraw the notice and pay costs. Accordingly, the appeal proceeded.
12. Following the hearing, the District Judge reserved his judgment. Thereafter he produced a short written judgment which is in the following terms:-

"This appeal is in relation to a S215 Town and Country Planning Act 1990 notice served by the London Borough of Hammersmith and Fulham [LBHF]

The notice refers to land known as 10 The Broadway Fulham. This is a multi-occupancy property.

The LBHF served the notice on all owners and occupiers of the property. The remedial works required under the notice related only to the upper floors of the building. The appellant occupies the ground floor. I am satisfied that the appellant 'occupies' the ground within the meaning of the Town and Country Planning Act 1990. [The Act]

The appeal is made under S217(1)(c) of the Act. The Appellant submits that the requirements of the notice exceed what is necessary, in a nutshell, the Appellants have no power to comply with the requirements of the notice. It is clear from the evidence that remedial works of the building are necessary.

I am satisfied that the S215 notice was correctly served. It is clear to me that the notice, particularly in a situation such as this must be served on all owners and occupiers. The notice acts as a warning to all who have been served and what follows if there is a failure to comply is enforcement. The Act gives Protection to those who can show that failure to comply was attributable to another.

This appeal fails.

I am aware of the correspondence that passed between the LBHF and the appellants' Solicitors. It was of course quite proper for the solicitors to alert the LBHF to the difficulties their client would have faced in complying with the requirements of the notice. This is how matter should proceed, but of course under this Act there are time limits and the appellant did not want to fall foul of the limitation period. Hence the Appeal being lodged albeit that I have found that it was misguided. The LBHF did at the last hour give some comfort to the appellants [the letter of the 20/11/07] it is perhaps unfortunate that that letter was not sent as an earlier date.

In regard to S217(5) of the Act I do not propose to give any directions. This does not appear necessary."

13. In the case stated the District Judge formulated the question for the opinion of this court as follows:-

"The question for the opinion of the High Court is whether or not I erred in law that in holding that the respondent was required, when served notice under Section 215 of the TCPA on the occupiers of the first, second and third floor levels of the building requiring works to be done to those levels also to serve the notice on the first and second appellants as "the occupiers of the ground floor" and thereby requiring the first and second appellant to do those works as well even though they had not at any time owned, occupied or otherwise had any rights of access to any part of those first, second and third floor levels."

14. Before me, Mr. Lewis, on behalf of the Appellants, advanced two bases upon which, he submitted, it would be proper for me to conclude that the District Judge erred in law in holding that the Respondent was required under section 215 to serve a notice on the ground floor occupier. Mr. Lewis first submitted that since the notice required the Second Appellant to do works to the first, second and third floors of the building even though it had not been and was not the owner or occupier of that land it also required the Second Appellant to commit a trespass. In those circumstances, submitted Mr. Lewis, the notice was a nullity. In making that submission Mr. Lewis relied heavily upon McKay v Secretary of State for the Environment, Cornwall County Council and Penwith District Council [1994] J.P.L. 806 and Miller-Mead v Ministry of Housing and Local Government and another [1963] 2 QB 196.
15. The second basis upon which it is said that the District Judge erred in law is formulated in paragraph 37 of Mr. Lewis' Skeleton Argument. In that paragraph he argued that the Respondent misdirected itself in law and hence acted ultra vires by serving the notice on the ground floor occupier who was neither an owner nor occupier of the property where works were required. Mr. Lewis submitted that the extent of the Respondent's power to issue and serve a visual amenity notice is defined by the terms of section 215; that section limits the power to serve a notice upon an owner and occupier of land the condition of which is adversely affecting the amenity of the area. Since the land occupied by the ground floor occupier was not affecting the amenity of the area it could not be correct, argued Mr. Lewis, to conclude that the Respondent was required to serve a notice on the ground floor occupier. In paragraph 38 of his Skeleton Mr. Lewis suggested that this argument was presented to the District Judge who simply failed to deal with it in his judgment.
16. Whether or not the argument was presented to the District Judge may yet be the subject of some dispute. I observe, however, that the argument as formulated in paragraph 15 does not seem to me to be one which comes squarely within either of the grounds of appeal specified in the notice of appeal which initiated these proceedings. Further, I understand it to be accepted by Mr. Lewis that the assertion that the notice was a nullity was not one advanced before the District Judge.
17. Mr. Lopez, on behalf of the Respondent, resisted the appeal on its merits. He did not seek to persuade me against determining points advanced on behalf of the Appellants even if those points were not taken before the District Judge. The concern of Mr. Lopez was to demonstrate that the District Judge had made no error of law however the alleged errors were formulated.
18. There will, no doubt, be many occasions when it is inappropriate to consider points raised for the first time on appeal by case stated. Some of the points in this appeal, however, have significance beyond the dispute between the Appellants and the Respondent. There must be countless occasions when a local authority has to consider whether or not to serve a notice under section 215 of TCPA 1990 Act in circumstances which are very similar or even identical to those which exist in this case. It is commonly the case that a building consists of a number of floors; while the freehold interest may relate to the whole of the land and premises there may be a number of leasehold interests in various floors of the building and the floors themselves may be occupied by lessees, sub-lessees or licensees. Further it may be the case, commonly, that a discrete part of the building (as opposed to the building as a whole) is in such a condition so as to be detrimental to the visual amenity of the area. If such circumstances exist, it seems to me (as will become apparent) that particular care is necessary on the part of the local planning authority in drafting a notice under section 215. In these circumstances, therefore, I consider it appropriate to deal with this appeal by reference to what I perceive to be the important issues whether or not such issues were raised squarely before the District Judge. Before doing so, however, it is necessary to set out, reasonably fully, the relevant statutory provisions.

The Relevant Statutory Provisions

19. Section 215 of the 1990 Act provides:-

"Power to require proper maintenance of land

(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."

The relevant parts of section 216 reads:-

"(1) The provisions of this section shall have effect where a notice has been served under section 215.

(2) 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 ……

(3) ……….

(4) Where proceedings have been brought under subsection (2) against a person as the occupier of the land and he has, at some time before the end of the compliance period, ceased to be the occupier of the land, if he–

(a) duly lays information to that effect, and

(b) gives the prosecution not less than three clear days' notice of his intention,

he shall be entitled to have brought before the court in the proceedings the person who then became the occupier of the land or, if nobody then became the occupier, the person who is the owner at the date of the notice.

(5) Where in such proceedings–

(a) it has been proved that any steps required by the notice under section 215 have not been taken within the compliance period, and

(b) the original defendant proves that the failure to take those steps was attributable, in whole or in part, to the default of a person specified in a notice under subsection …. (4),

then–

(i) that person may be convicted of the offence; and

(ii) if the original defendant also proves that he took all reasonable steps to ensure compliance with the notice, he shall be acquitted of the offence."

20. Section 217 creates a right of appeal to the magistrates' court for a person served with notice under section 215 or any other person having an interest in the land to which the notice relates. Sub-section (1) specifies the grounds upon which an appeal can be made. They are:-

"(a) that the condition of the land to which the notice relates does not adversely affect the amenity of any part of the area of the local planning authority who served the notice, or of any adjoining area;

(b) that the condition of the land to which the notice relates is attributable to, and such as results in the ordinary course of events from, the carrying on of operations or a use of land which is not in contravention of Part III;

(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 falls short of what should reasonably be allowed."

21. Sub-sections (4) and (5) should also be noted. Sub-section (4) provides that upon an appeal a court may correct any "informality, defect or error in the notice" if satisfied that the informality, defect or error is not material. Sub-section (5) provides that the court may give directions for giving effect to its determination including, where appropriate "directions for quashing the notice or for varying the terms of the notice in favour of the appellant".
22. Section 336 defines land as "any corporeal hereditament, including a building…"

Discussion

23. Section 215(1) TCPA 1990 empowers the local planning authority to serve a notice under the section when the condition of land within its area is such that the amenity of a part of its area or an adjoining area is adversely affected. The subsection empowers the local authority to serve a notice "on the owner and occupier of the land". Section 215(2) requires the local planning authority to specify within the notice steps for remedying the condition of "the land." As a matter of interpretation, in my judgment, the land in respect of which an owner and occupier may be served with a notice under subsection (1) must be the same as the land in relation to which remedial works are to be carried out by virtue of subsection (2).
24. I also take the view that the statutory power to serve a notice conferred by section 215(1) can only be exercised in relation to land the condition of which is having an adverse impact upon amenity.
25. During the course of his submissions, Mr. Lopez was at pains to point out that section 215(1) requires that a notice under the subsection is served upon both the owner and the occupier of the land to which the notice relates. I have no difficulty in accepting that proposition; it accords with the natural meaning of the statutory language and such an interpretation complements the propositions I have set out in paragraphs 22 and 23 above.
26. It seems to me the effect of the three propositions so far elucidated is as follows. A local planning authority may identify an area of land within its administrative area as one which is impacting adversely upon amenity. Having done so, the local planning authority may, if it thinks it appropriate, serve a notice under section 215. The notice must identify the land which is impacting adversely upon amenity and it must be served upon the owners and occupiers of that land. Within the notice, remedial works are specified; they are works which are to be undertaken for the purpose of remedying the condition of the land which is adversely affecting amenity; their aim is removing the detrimental impact of the condition of the land. The persons required to undertake the remedial work are the owner and occupier of the land which is adversely affecting amenity.
27. Mr. Lopez submits that it is for the local planning authority to define the area of land which is adversely affecting amenity. No doubt, in one sense that is true. It is obviously a matter of judgment for the local authority to decide upon the area of land which is having the adverse effect. In making its judgment about the appropriate area of land, however, the local planning authority must respect the statutory purpose which it is seeking to achieve and it must proceed on the basis that the remedial steps it proposes should be taken must be carried out by the owner or occupier of the land which is causing the harm to amenity.
28. I can well understand that when it makes its judgment about the area of land the condition of which is said to be detrimental to amenity the local planning authority will need to take account of a number of factors. It is not possible, in a judgment of this sort, to seek to anticipate what factors may arise in any particular case. In this judgment I content myself with a consideration of the factors which did arise for the Respondent's consideration in the instant case, acknowledging, as I have, that the salient factors are likely to recur.
29. The Respondent identified discrete parts of a building as being of such a condition so as to affect, adversely, the amenity of part of its area. The discrete parts were the first, second and third floors of the building. About that, there is no dispute. The Respondent also identified the necessary remedial works. It specified, as it was bound to do in this case, that the remedial work should be carried out upon the discrete parts of the building identified as causing harm to amenity by virtue of their condition.
30. In these circumstances it seem clear to me that the Respondent should have identified the land to which the notice under section 215 TCPA 1990 was to relate as the first, second and third floors of the building situate at 10 Fulham Broadway. Had it done so, there would have been no question of the Respondent being required to serve a notice under section 215 upon an occupier of a different part of the building (or for that matter an owner if ownership of the upper floors was separate).
31. It is common ground, as I have said, that the notice specified that the land to which it related was the whole of the building. In my judgment, by specifying that the notice related to the whole of the building the Respondent acted outside its statutory power. Put shortly, it had no power to serve a notice in respect of the ground floor of the building since the ground floor of the building was not in such a condition so as to cause harm to amenity.
32. Accordingly, in my judgment, at least as against the Appellants this notice should have been quashed by the District Judge and it now falls to be quashed by me. To repeat, the Respondent had no power under section 215 TCPA 1990 to serve the notice upon the Second Appellant since no land owned or occupied by the Second Appellant was in such a condition so as to affect adversely the amenity of a part of the Respondent's area.
33. In reaching that conclusion I express no view upon whether the notice should be quashed as against the other persons specified within the notice. They are not parties to these proceedings and it does not seem to me to be appropriate to consider what might have occurred had those parties joined in these proceedings. Further, in relation to those parties, careful consideration of the court's powers under section 217(4) and (5) would be necessary.
34. In reaching my conclusion I am fortified by the terms of guidance issued to local planning authorities about section 215 of TCPA 1990. Extracts from a document entitled "Best Practice Guidance" issued by the Office of the Deputy Prime Minister was put in on behalf of the Respondent. Under the heading "Issuing a S215 Notice" the first sentence reads:-

"LPAs will be well advised to ensure that the notices they issue are clear, precise and unambiguous".

35. Annex F to the document provides an example of an appropriate section 215 notice. Paragraph 1 is entitled "The Notice" and then continues:-

"This notice is served by the Council under section 215 of the above Act because it appears to them that the amenity of a part of their area is adversely affected by the condition of the land described below."

That introductory paragraph, of course, makes it crystal clear that the land which is about to be described is the land the condition of which is adversely affecting the amenity of the area.

36. It is to be observed that the notice in the instant case includes paragraph 1 in precisely the form suggested by the guidance. Yet, on any view, the land which was then described (see paragraph 4 above) was more extensive than the land the condition of which was causing harm to amenity.
37. At first blush it may seem surprising that a local planning authority must define land in a case such as this by reference to discrete parts of a building. I can well understand that the person charged with the drafting of a notice under section 215 might naturally assume that the land to be described is a building. However, the difficulty with that approach is that all the occupiers of the building must then be served. The purpose of serving the notice is to require specified work to be done. I ask the rhetorical question: what is the point of serving a notice requiring work to be done on a person or persons who have no rights of ownership or occupation over the land upon which work is to be undertaken? Is it to be suggested that a notice under section 215 must be served on every occupier of a 20 storey building even though only part of the building is causing harm to amenity? In my judgment, there is simply no purpose in serving a notice upon persons who have no ownership or occupation rights.
38. My conclusions thus far are sufficient to dispose of this appeal in favour of the Appellants. However, I should deal, shortly, which other points which have arisen during the protracted course of litigation.
39. I am firmly of the view that the District Judge was correct to reject the suggestion that the Appellants were entitled to rely upon the ground of appeal specified in section 217(1)(c) of TCPA 1990. In my judgment that subsection is aimed at "over-enforcement" i.e. where the remedial work specified exceeds what is reasonably necessary to be done in order to remove the adverse effect to amenity. In my judgment the Appellants' attempts to bring themselves within this sub-section were always doomed to failure.
40. I do not share the view of the District Judge that "the Act gives protection to those who can show that failure to comply was attributable to another" if that sentence was intended to convey the suggestion that the Act would have protected the Second Appellant from enforcement action given the undisputed facts of this case. In my judgment nothing contained within section 216 of TCPA 990 would have prevented the Respondent from taking enforcement action against the Second Appellant and nothing contained within that section would have afforded to the Second Appellant a defence to proceedings in the magistrates' court on the basis that it was unable to carry out the remedial works specified in the notice.
41. I have given careful consideration to whether or not I should consider and rule upon Mr. Lewis' submission that the notice was a nullity. I have decided not to do so. In part, of course, that is because he has succeeded in persuading me that his alternative submission is well founded. There is a further reason, however, why I have decided against considering the nullity issue. The nullity argument, as formulated by Mr. Lewis, proceeds on the basis that the Respondent was entitled to identify the land to which the notice related as the whole building. In the event that I am right in my analysis that the land identified as being that to which the notice related must be the same as the land in relation to which remedial work must be undertaken, the issue of nullity should never arise again in a similar context. Further if a notice is a nullity it must null and void as against everyone. To repeat, there are persons affected by the notice who are not parties to these proceedings.
42. Finally, I cannot end without expressing my own view about whether or not, in reality, these proceedings were necessary. I am firmly of the view that they were not. By 20 November 2007, at the latest, it was crystal clear that the Respondent would never seek to rely upon the notice served upon the Second Appellant so as to take enforcement action against the Second Appellant under section 216 TCPA 1990. At that point, in my judgment, a reasonable and proportionate response on the part of the Appellants would have been to accept that the Respondent had acted in good faith, albeit, as I have found, outside their statutory powers. At that stage legal costs were or ought to have been comparatively modest. I would be sorry if the issue motivating these proceedings was costs but I am left with the strong impression that this has been a motivating factor and a strong one at that.
43. In a last-ditch attempt to minimize the costs which both parties have incurred I would urge them to seek to agree an order consequent upon this judgment. If they cannot, the parties should give serious consideration to instructing their lawyers to make short written representations to me about the form of the order and any consequential matters arising. Ultimately, however, I have reached the conclusion that I should not take the draconian course of making an order that all further matters should be dealt with in writing. If, therefore, the parties consider that they must attend the hand down of this judgment to make oral representations about the appropriate order for me to make, so be it.
44. It should not be thought that I have lost sight of the question posed for the opinion of this Court. Even if I had, however, that would not be fully surprising, given that the arguments ranged far and wide and were certainly not restricted to the question posed in the case stated. As I have explained I do not think that the resolution of this appeal depends upon a specific answer to the question as formulated. Consequently, I content myself by saying that this appeal is allowed for the reasons set out above and the notice is quashed as against the Appellants.