Berg v Salford City Council

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.

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.

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.

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.

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.

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:

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."

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

By section 216(2) of the Act:

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:

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

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:

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.

The statement of agreed facts also included the following:

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.

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:

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.

Mr Berg submits that the notice cannot go beyond maintenance save insofar as the pre-existing condition of the land may be ascertained.

Mr Berg submits that any other interpretation would conflict with the guidance in Ministerial Circular and the Department of the Environment, which states:

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.

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).

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."

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”.

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:

At page 14C to E the judgment continued:

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

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

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.

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.

Miss Fitzpatrick invites the court to have regard to the Best Practice Guidance, which provides:

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:

At page 16E the judgment continues:

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:

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.

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.

In the present case the Crown Court concluded on page 9 at paragraph F as follows:

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.

I would answer question 3 in those terms.

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.

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:

At paragraph 30 the judgment continues:

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 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’.

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.

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.

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.

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.

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.

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.

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.

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".

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.

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.

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.

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.

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.

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.

For the reasons that I have given, this appeal fails.