Berg v Salford City Council

(Draft for approval)

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:

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

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

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

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:

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

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

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

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

By section 216(2) of the Act:

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

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

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

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

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

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

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

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

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

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:

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

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

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

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