Butler & Young Ltd. v Bedford Borough Council

MR JUSTICE COLLINS: The appellants, Butler & Young Limited, appeal by way of case stated against a decision of the justices for the petty sessional division of Bedford and Mid-Bedfordshire given on 12 November 2002. The justices determined to dismiss an appeal by the appellants under section 55(1) of the Building Act 1984 against the refusal by the Bedford Borough Council, the respondent, to accept a Plans Certificate which had been served on the basis that there was no Initial Notice in being.

The case records that the facts were and are agreed, and, so far as material, were as follows. Works were carried out at an address in Kempston, Bedfordshire, which involved internal alterations and, in particular, the construction of a mezzanine floor. The appellants were a firm of corporate approved inspectors for building regulation purposes. On 1 July 2002 they had been instructed by Stephen Buxton & Associates to act on behalf of a client of theirs to apply for building regulation approval for the works in question. The Borough Council was the local authority for the purposes of the Building Act 1984.

The premises were inspected by the Council's Building Control Manager, Mr Martin, on 3 July 2002 and he noted that the work had substantially commenced with the mezzanine frame members erected. On 8 July, when Mr Martin revisited, the work had progressed, the floor deck and stairs were in position, balustrading had been installed and there had been other works completed. He was told by the site agent that the fitting out works had commenced on 1 July and, at that time, no notices in respect of any works had been served upon the Council.

The Initial Notice under section 47 of the Building Act 1984 was dated 4 July and had been sent the same day to the Council. On 8 July Mr Martin had spoken to the intended approved inspector for the development, Mr Meade, and Mr Meade indicated that he was not aware that the work had in fact started. Accordingly, the Borough Council informed the appellants, by letter of 8 July, that a notice could not be served for the work as it had been substantially commenced, and that what should be done was to apply to the Council for a regulation certificate under regulation 21 of the Building Regulations 2000.

On 9 July the appellants wrote to the respondent stating that they disagreed with the interpretation of the Regulations. On 18 July a Plans Certificate, in accordance with section 50 of the Building Act 1984, was prepared and sent to the Borough Council, but was rejected on the basis that there was no Initial Notice in force at the material time. On 2 August the appeal to the Magistrates' Court, under section 55 of the Building Act, was lodged.

That all sounds somewhat complicated and it is necessary to go to the primary legislation, which is contained in the Building Act of 1984 and the secondary legislation in the form both of the Building Regulations 2000 SI 2000 No 2531 and the Building (Approved Inspectors etc) Regulations 2000 SI 2000 No 2532. Of course, the regulations cannot be used to determine the true construction of the relevant primary legislation, but, if the regulations appear to be consistent with and accord with a particular construction, that is capable of being a helpful indication that that is the correct construction. The Act, however, must stand on its own and be construed according to the words used by Parliament in it.

The point at issue is a short one, but an important one. The question arises from the scheme of the Building Act, which permits either a local authority control over building works or control by a private approved inspector. It is up to any particular builder which avenue he wishes to go down. If he decides not to use a private approved inspector, then the local authority will automatically be responsible for supervising the works and making sure that they are in accordance with building regulations and proper practice. All this, of course, is concerned with safety: the safety of the public and to ensure that no buildings are erected which are dangerous or which interfere with the rights of others. For example, if drainage is affected, that may obviously interfere with adjoining land owners. But, as I say, the control is through the local authority, unless the individual builder chooses to use the approved inspector route.

The question which arises is whether that choice can be exercised after the works have commenced or whether it is only possible to exercise it before the works commence. If it is to be exercised after, then there is, it is said, no proper means of ensuring that work thitherto carried out is properly inspected. More importantly, there is no provision for ensuring that what has been done can be undone or opened up to ensure that it has been done properly.

What should happen, it is submitted on behalf of the Borough, is that, if works are commenced before the procedure is instituted whereby the private approved Inspector route can be adopted, the position must be regularised. That can only be done by applying to the Council under the relevant regulation in order to regularise the position and, from then on it is possible for the private approved inspector to be used.

That essentially is the issue here, because it is obvious from the facts, as I have stated them, that the work was commenced before any relevant notice was served which enabled the approved inspector route to be used.

The key provision is that in section 47 of the Act, which is the commencement of Part II, the part which deals with supervision of building work otherwise than by local authorities. Section 47(1) provides:

As is apparent from the words used in section 47(1)(a), the notice is to be given by a person intending to carry out work. The submission made on behalf of the Council in essence is that that governs the situation. That means that one is looking to the future and that a section 47 notice, which is called the "initial notice", can only be given if the works have not commenced. That is subject to this proviso only: there may be circumstances where works have been commenced properly under an initial notice, but for some reason those works cannot be continued. For example, the builder goes into liquidation or the approved Inspector cannot continue. In those circumstances, it is accepted that a fresh initial notice can be served, but in relation to the works which are still to be carried out. So again, it will look to the future. That is the basic submission made on behalf of the respondent and it is said to be in accordance with the scheme of the Act and with other provisions of the Act in which initial notices are considered.

It is also pointed out that, by section 58, which is the interpretation section in relation to Part II, initial notice is defined as having the meaning given by section 47(1); and so it must be defined as a notice in accordance with the provisions that I have read in section 47(1).

Section 47(2) sets out the circumstances in which a local authority can or cannot reject an initial notice. It reads:

As will be clear from the facts of this case, there was no rejection of the initial notice and so it is submitted, on behalf of the appellants, that, by virtue of section 47(3), the notice is presumed to have been accepted.

The contention on the part of the respondent is that this is not a notice within the meaning of the Act. It is not a notice which falls within section 47(1) and, therefore, there was no need for them to accept or reject it. It simply was not a valid notice at all. For that reason, they did not accept the plans which came later.

The prescribed grounds for accepting or rejecting the notice are contained in the Approved Inspectors Regulations. It is not necessary for me to read them out in detail. They are, putting it broadly, some matters of form (that is to say the notice is not in the prescribed form or the work is not in the relevant area); the person signing was not approved; there is insufficient information about the work; the various requirements in relation to insurance and notification to the fire authority or independence of the approved inspector are not satisfied; there are deficiencies in the work in relation to where a building is to be erected or extended; proposed drains or private sewers are not satisfactory; if work includes building over sewers, the authority are not satisfied that they can properly consent to the work; a local enactment exists which requires plans submitted to be rejected; and, finally, if there is an overlap with an earlier notice which is still in force. Those essentially are the grounds for rejection. They do not include the circumstances such as exist here as one of the grounds for rejection.

The effect of an initial notice is to prevent the local authority from exercising the powers that it would otherwise be able to exercise in relation to building control. Those include powers to prosecute for breach of regulations or to issue notices under section 36 of the Act requiring remedial work to be carried out.

In relation to criminal proceedings, the prohibition is on the institution of proceedings under the relevant section, which is section 35. The only importance of that is in relation to an argument by Mr Mitchell that it does not prevent the continuation of proceedings, if proceedings have already been instituted by a local authority.

Section 49 contains provisions which deal with how inspectors should be approved.

Section 50 then deals with plans certificates, which are directly in issue in this case, in the sense that the appeal was against the refusal to accept a plans certificate. It is not essential that plans be served with the initial notice, although it is possible and no doubt common for that to occur. It may depend upon the nature of the building work in question. Section 50 subsection (1) provides:

It will noted that, in subsection (1), there is a reference to "the person intending to carry out the work", and in subsection (2) the expression used is "a person who proposes to carry out any work". As far as I can see, the difference in the wording makes no difference to the effect of each of the expressions: someone intending to carry out work and someone proposing to carry out work are in exactly the same position. Quite why Parliament used different words, I do not know, but that cannot affect the construction.

Again, the Approved Inspectors Regulations contain the prescribed grounds whereby there can be rejection, and the prescribed forms that should be used for submitting plans certificates. It is not, I think, necessary for me go through them. They are similar to those I have already read in relation to the grounds for rejecting initial notices, but, of course, in ways which are expressly applicable to plans. But there is one important ground which is contained in paragraph (4) of schedule 4 (which sets out the grounds for rejecting a plans certificate) namely that no initial notice was in force with respect to the work described in the certificate at the time the certificate was given. That is the ground which was relied on in this case.

Section 51 deals with final certificates, which are given when the approved Inspector is satisfied that the work to which an initial notice relates has been completed. Effectively, they indicate or should indicate that the approved Inspector has accepted that the works in question have been carried out in compliance with the regulations.

There is nothing which expressly deals with a situation where the works have been commenced under an initial notice, but for some reason have been unable to be concluded, save for sections 51C, 52 and 53(7). Those, I now turn to. Section 51C deals with a change of person intending to carry out work. Subsection (1) provides:

What then should happen, if there are changes after the work has begun? The Act unfortunately, in that respect becomes somewhat less than clear. Section 52 deals with cancellation of initial notices. It provides, by subsection (1):

Going back to section 52, subsection (2) provides:

Subsection (3) deals with the matter the other way round, where the builder takes the view that the approved inspector is no longer willing or able to carry out his functions. It provides:

The effect of all this is that an approved inspector may cancel the notice, if he feels that he cannot carry on for any reason or believes that the work is being so carried out that he cannot properly carry out his functions, or if there have been contraventions of the regulations which have not been remedied.

It is only in the latter case that the prescribed notice requires that the local authority be told of the contraventions and of the failures to remedy them. The reason for that is perhaps obvious, because then the local authority will be in a position to know precisely what has to be done because they will become responsible for carrying out the supervision once the initial notice goes, unless, of course, there is a fresh notice served, in which case the subsequent inspector should be aware of the matter and the local authority can ensure that he is made aware of the situation.

However, that does not cover the whole picture because, under section 52(1)(b), the inspector may take the view that the work is being so carried out that he cannot adequately carry out his functions. It does not appear that he has to indicate that as a reason for cancellation, if there has been no contravention within the meaning of 52(1)(c).

Section 53 deals with the effect of an initial notice ceasing to be in force.

The important provision is in subsection (7) of section 53. That does create some difficulties. It provides:

It is submitted, with some force, by Mr Mitchell that that shows that Parliament contemplated that an initial notice could be served in circumstances where work had already been carried out. Indeed, on a strict construction of the wording, it was possible that a new initial notice could be served, even though the whole of the work had been carried out, provided that no final certificate had been given and accepted. That, it is said, is inconsistent with the approach which the Council persuaded the magistrates to be the correct approach.

Before finally deciding on the issue, I should just note as Mr Bhose asked me to, the general requirement which is that works which are subject to the Building Act 1984 should not be commenced unless either notice has been given to the local authority in accordance with the provisions of Part I of the Act, if the local authority is to be the supervising body, or the matter has been made the subject of an initial notice, if the private sector is to be employed.

In either case the local authority will have been notified and will have been required to give its approval to either the commencement of the works or to the initial notice. If that is not done, the works are not lawfully commenced. That is made clear from, in particular, regulation 15 of the Building Regulations which provides:

Regulation 21 of the building regulations deals with the situation where there has been unauthorised building work carried out. It provides, so far as material, by paragraph (2):

It is clear that that power is not given to an approved inspector, but, submits Mr Mitchell, section 52 enables an inspector to take such steps as he believes necessary to ensure that there has been compliance. If there is a refusal by the builder to cooperate, he can and should cancel the initial notice on the basis that he cannot carry out his functions properly.

It is true that section 52(1) contains relatively wide powers. On the other hand, the language is clearly related to work in being, work which the approved inspector can inspect as it is going on. Subsection (1)(a) deals with a situation where he "becomes or expects to become unable to carry out or continue to carry out his functions"; and subsection (1)(b) deals with the situation where any of the work "is being so carried out that he is unable adequately to carry out his functions". Subsection (1)(c)) would not apply to the situation unless it was clear to the inspector that there had been a contravention. But the point at issue here is that there might have been a contravention which was not apparent unless the works were opened up. Thus, in a situation like that, subsection (1)(c) clearly could not be used.

It seems to me that section 52(1) is indeed looking to the present and to the future and is not, on the face of it, dealing with past work. In addition, as Mr Bhose submits, it is somewhat curious if a prosecution can effectively be prevented merely by an initial notice being served after the works have been commenced. The situation may well exist where there has been a serious breach of the building regulations in work which has been commenced in contravention of the regulations. The local authority may well be prepared to issue a regularisation certificate, if what has been done is put right; but they may well take the view that what was done was a serious matter and ought to be the subject of criminal proceedings. It is clearly right that consideration should be given, and careful consideration should be given, to whether a prosecution should follow.

It is unlikely, in any case, and certainly in a case such as this, where only a few days were involved, that a prosecution could be launched before the initial notice was served, if it is appropriate that an initial notice can be served notwithstanding that the works have been commenced. In those circumstances, the service of an initial notice can prevent what otherwise might be a very desirable and perfectly proper prosecution and that would indeed be a strange situation.

I do not for a moment suggest that there was anything underhand or anything which was intended to avoid the necessary supervision in the circumstances of this case. The claimants are highly reputable and, indeed, there is no suggestion that the clients for whom they were acting were other than highly reputable. They believed that the Act, on its true construction, entitled them to issue an initial notice, notwithstanding that work had commenced.

But the point is one of general application and does not depend upon the circumstances of an individual case. It seems to me that the language used, with the exception of 53(7), which I shall have to deal with in a moment, is compatible only with the construction put upon it by the respondents. It is a requirement, and one would expect this requirement to exist, that work is not commenced until the responsible body has had the opportunity of considering whether it can comply with the building regulations and whether what is proposed does contain any matters which ought to be dealt with in advance, for example, problems in relation to drainage or any local enactments. If work can be commenced unlawfully and then, as it were, rendered retrospectively lawful by the simple expedient of serving an initial notice which can only be rejected on specified grounds, then a degree of control in the public interest may well be lost.

There is a private contractual arrangement between the approved inspector and the builder. There is nothing wrong about that and I do not suggest for a moment that an approved inspector, and certainly not this approved inspector, would deliberately do anything which was contrary to his duties under the Act. But it is obvious that there could be pressures upon an approved inspector, if work had been commenced, not to take the rigorous steps that might perhaps be necessary to ensure that that work had been carried out properly, where serious additional expense would be occasioned by those activities. The local authority would have no such inhibitions. That is, as it seems to me, another reason, in principle, why a regularisation procedure under regulation 21 would be appropriate in such a situation.

I ask myself whether there is anything in the statutory scheme which is against that construction. Parliament clearly draws the distinction between the situation where the works are proposed to be carried out or are intended to be carried out and where they are being carried out or have been carried out. An example which immediately comes to mind is section 52(3) which talks about "If, at a time when an initial notice is in force, it appears to the person carrying or intending to carry out the work". So the distinction, as I say, is drawn. If, for the purposes of section 47(1), the expression "person intending to carry out work" is apt to include one who has already started to carry out the work, then that distinction would seem to be stated unnecessarily.

I come, therefore, to section 53(7). I note that, because of section 58, "initial notice" in section 53(7) must be construed to mean a notice within the meaning of section 47(1). It seems to me that section 53(7) must be either regarded as an exception to the normal approach to initial notice or as having, inevitably, a somewhat limited effect. If one construes "initial notice" in the same way as, in my judgment, it should be construed, then 53(7) can only enable a new initial notice to be given in relation to work which has not yet been carried out, work that is still to be carried out, which may have been covered by the old certificate which has now come to an end. That seems to me to be an inevitable construction of 53(7), if the meaning of the words "initial notice" is the same as that in 47(1).

As I say, the alternative approach is to decide that Parliament, although it has done it somewhat elliptically, has effectively provided that exceptional circumstances exist, if, but only if, the work was commenced properly in accordance with an initial notice and for some reason that notice has ceased to be in force. If the notice has ceased to be in force for reasons other than contravention, then it may be that it is not inappropriate to permit a subsequent notice to fill the gap. The local authority will have been informed by the cancellation, if there has been a contravention, and so will know that it has to be satisfied that that has been properly dealt with before the matter can be brought to a conclusion.

Thus, in my view, whatever the true construction of 53(7), it is not by itself sufficient to indicate that the construction which I place upon section 47 is wrong. As I say, that construction seems to me to accord with the whole purpose of the Act and to be consistent with what is set out not only in the Act but in the regulations.

I do not have to reach a final conclusion on the correct construction of section 53(7). It is, I am bound to say, not an easy one to resolve. It seems to me that, on balance, the construction that means that the words "initial notice" are given a consistent meaning throughout is the correct one, and that section 53(7) has a somewhat narrower effect than is submitted by Mr Mitchell. That would not be altogether surprising because the works under the old initial notice would have been properly supervised by that approved inspector and, if there was any contravention, then it would be right and proper for the local authority to have a direct interest in relation to the past work. So far as the future was concerned, then it would be perfectly proper for a new approved Inspector to carry that out. But that could only be once the situation had been remedied. As I say, the local authority would be in a good position to ensure that that occurred.

Accordingly, as I say, although it is not strictly necessary for the purposes of this judgment, I would construe 53(7) in the same way as the balance of the relevant sections in Part II of the Act.

That means that, in my judgment, the justices were correct in the decision that they reached and I would pay tribute to the clarity of their reasons. The initial notice served after the works had commenced was not a valid notice for the purposes of Part II of the Act because it did not accord with section 47(1). That means that the local authority respondents were entitled to regard it as not being a valid notice and they did not need to reject it. Indeed, they had no grounds for rejecting it because it did not fall foul of any of the prescribed matters.

In those circumstances, there was no initial notice in being because a piece of paper which purports to be an initial notice is not an initial notice within the meaning of the Act and the regulations. Accordingly, they were entitled to reject the plans certificate. In those circumstances, I would dismiss this appeal.

MR BHOSE: My Lord, I think formally my Lord needs to answer both the questions at paragraph 7 of the case.

MR JUSTICE COLLINS: Yes, I think I probably do. The answers to the questions are "yes" and "yes".

MR BHOSE: My Lord, that is right. The only other matter, my Lord, is that of costs.

MR JUSTICE COLLINS: Yes. I have a copy of your statement of costs.

MR BHOSE: There is just one omission from that. I was asked to draft a response to the draft case to the justices, which is not included. That was £250 plus VAT. If one ignores the VAT, that takes to us £5,000.

MR JUSTICE COLLINS: £5,000.

MR BHOSE: My Lord, yes.

MR JUSTICE COLLINS: Mr Mitchell, first of all, liability for costs.

MR MITCHELL: There is no issue, my Lord.

MR JUSTICE COLLINS: I do not think you can dispute that. What about amount?

MR MITCHELL: There are a number of matters, my Lord. The first is as to the rates charged by the relevant fee-earners within the Bedford Borough Council. Of course, they are not in private practice. They are employees of the respondent.

MR JUSTICE COLLINS: Well, so?

MR MITCHELL: Therefore, the effect of the loss, under the indemnity principle, suffered by the Council by reason of these proceedings or whether it is simply numbers comparable to that which solicitors in private --

MR JUSTICE COLLINS: It is rather less, is it not, than solicitors in private practice?

MR MITCHELL: I would have thought -- maybe the standard Bedford County Court rate.

MR JUSTICE COLLINS: I do not know. Your instructing solicitor will know a lot better than I do.

MR MITCHELL: That sort of rate is the sort of rate charged by a senior (inaudible).

MR JUSTICE COLLINS: What do you suggest?

MR MITCHELL: It might be that it is for the Council to put forward the real figure rather than a comparable figure. Secondly, the matter of the attendance.

MR JUSTICE COLLINS: I think perhaps that to have two attending is not necessary. I do take that point very much. What about counsel's fees? Do you quarrel with those? I know it is invidious, but I have to --

MR MITCHELL: The issue, in line with the guidance given, is whether the skeleton is part of the brief fee or not, but I am not minded to pursue that.

MR JUSTICE COLLINS: It is always difficult because, if it had been the other way round, I do not suppose there would have been a huge difference in the amounts or, if there were, it would --

MR MITCHELL: My learned friend, was better paid in front of the magistrates than me; the converse is true today.

MR JUSTICE COLLINS: I suspect that there will not be much there. So it is really the amounts of £130. Are you quarrelling the £80 as well?

MR MITCHELL: Yes. If £80 is the appropriate rate for a partner --

MR JUSTICE COLLINS: If £80 goes to £130, then if £130 comes down, so does £80. You say that it really was not justifiable to have both attending at court.

MR MITCHELL: No. We obviously have no objection to the trainee turning up, but that would be part of her normal training for which I am --

MR JUSTICE COLLINS: Mr Bhose, I am rather inclined to accept the point about both being in court.

MR BHOSE: My Lord, I entirely accept that I cannot have Miss Chambers' attendance at court. I am certainly entitled, in my submission, to have Mr Fordham here.

MR JUSTICE COLLINS: Yes, I think that is right. You are entitled to proper representation.

MR BHOSE: Furthermore, a senior officer.

MR JUSTICE COLLINS: You accept that we delete the £200 travel and the --

MR BHOSE: The £360.

MR JUSTICE COLLINS: The £360.

MR BHOSE: If you are being extremely mean, then half of the subsistence.

MR JUSTICE COLLINS: Half the subsistence. We will knock that down, shall we, to £12? Now, what about the £130?

MR BHOSE: The hourly rate sought to be charged by the appellants' solicitor is £165 per hour. We are seeking to charge £130 for the Deputy Head of Legal Services. As my Lord knows, local authority legal departments charge the clients. It has not been the position for many years that it is all out of a big pot and is not really money.

MR MITCHELL: The question then is: what is the internal charge?

MR BHOSE: I am told there is no internal charge. They charge a commercial rate internally.

MR JUSTICE COLLINS: I see.

MR BHOSE: My Lord, as always, it is a rough and ready matter for my Lord.

MR JUSTICE COLLINS: There is always a degree of, I always feel, palm tree about these summary assessments. I do take the point that there could be arguments about whether the full commercial rate is appropriate for the local authority. Equally, I do not think it is fair that there should be any great reduction. I have to take off £573 any way. That is the £360, the £212 and the £13.

MR BHOSE: But adding back in the £250 for the preparation of the submissions on the draft case.

MR JUSTICE COLLINS: Yes, that has already been added. What I am inclined to do, and again I appreciate that it is very rough and ready, is to award you a total of £4,100. Mr Mitchell, do you want to say anything about that?

MR MITCHELL: The only difficulty on the figure of £573 is that, of course, that is exclusive of VAT. So the actual sum my Lord took off was that plus 17 per cent. £673 was the sum that came off.

MR JUSTICE COLLINS: Was it? I thought it was £573.

MR MITCHELL: Then, I think you add -- sorry my mistake.

MR JUSTICE COLLINS: They were giving you the VAT, so you were getting an advantage there. I appreciate that that sort of activity by me is not going to satisfy either of you. I find it very difficult to know what is the appropriate fee on these summary assessments. Inevitably, one is rather out of touch. It is quite a time since I was at the Bar now.

MR MITCHELL: And it is not the thing that you are focused upon during the day.

MR JUSTICE COLLINS: That is right, but I hope you will think that is a reasonably fair assessment. I shall say appeal dismissed with costs of £4,100 summarily assessed. This is a civil matter, is it not?

MR MITCHELL: It is, my Lord. This is the end of the road, I think.

MR JUSTICE COLLINS: You are not making any application?

MR MITCHELL: No, I am not.

MR JUSTICE COLLINS: Thank you very much.