Christian Braun and First Secretary of State and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon Brown,Lord Justice Laws,Lord Justice Longmore |
| Judgment Date | 20 May 2003 |
| Neutral Citation | [2003] EWCA Civ 665 |
| Docket Number | Case No: C1/2003/0030/QBACF |
| Court | Court of Appeal (Civil Division) |
| Date | 20 May 2003 |
[2003] EWCA Civ 665
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(Mr Justice Ouseley)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Simon Brown
(Vice-president of the Court of Appeal Civil Division)
Lord Justice Laws and
Lord Justice Longmore
Case No: C1/2003/0030/QBACF
John Litton Esq (instructed by The Treasury Solicitor) for the Appellant
Christian Braun Esq appeared in person
The respondent (Mr Braun) and his wife own 137 Talgarth Road, London W14 ("the building"), one of a terrace of eight three-storey studio houses known as St Paul's Studios on the south side of Talgarth Road. They were designed by the architect Frederick Wheeler for bachelor artists and built in 189In June 1970 they were listed (ie, added to the List of Buildings of Special Architectural or Historic Interest). Mr Braun and his wife purchased the building in early 2000 and between March and July that year carried out a number of internal alterations to it. Having initially been wrongly advised by consultants that consent for these works was not needed, Mr Braun sought retrospective permission for them by an application for listed building consent received on 10 July 2000. The local planning authority, the London Borough of Hammersmith and Fulham ("the Council"), took no decision on that application but instead laid an information against Mr Braun dated 24 August 2000 alleging that he, between 1 March and 12 July 2000:
"Did cause to be executed works namely removal of wainscoting, infilling of arch and inset cupboard in ground floor front room, renewal and relocation of skirting, fixing of timber floor covering to stairs and cutting of bottom step, for the alteration of a listed building, namely 137 Talgarth Road … which would affect its character as a building of special architectural or historic interest, contrary to section 9(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 ["the 1990 Act"]."
The District Judge on 26 April 2001 dismissed that information but meantime, on 10 November 2000, the Council had served upon Mr Braun a listed building enforcement notice which, as later corrected by the Inspector appointed by the Secretary of State to hear and decide Mr Braun's appeal, set out the alleged contraventions of listed building control and the steps required to be taken to rectify them respectively as follows:
Contraventions:
" Front Room, Ground Floor:
1. Removal of majority of floor skirting made of one piece of timber and affixed directly above the original floor, and its replacement with skirting affixed to the wall so as to accommodate a floating timber flooring cover below, which covers the whole surface from wall to wall.
2. Infilling of recessed arch in southern wall.
3. Removal of recessed display cabinet located on the east side of the arch in the eastern wall and infilling the resulting void.
Middle Room, Ground Floor:
4. Removal of majority of floor skirting made of one piece of timber and affixed directly above the original floor, and its replacement with skirting made of two horizontal pieces of timber affixed to the wall so as to accommodate a floating timber floor covering below, which cover the whole surface from wall to wall.
5. Affixing of timber desk to wall.
Rear Room, Ground Floor:
6. Creation of hole in ceiling.
Hall, Ground Floor:
7. As per item 4 above.
Internal Staircase from the Ground Floor to the First Floor:
8. Installation of new timber flooring screwed to lower section of internal stairs leading to first floor.
9. Cutting away of part of bottom tread of stairs.
Studio, First Floor:
10. Installation of a fireplace surround.
11. Removal of timber wainscot boarding.
12. Installation of replacement kitchen; installation of some kitchen units affixed to southern wall.
13. Installation of new strip of wood in window frame of tall leaded light adjacent to eastern wall of front elevation."
Requirements:
" Front Room, Ground Floor:
1. Removal of replacement skirting and replacing this with skirting which is made up of a single piece of timber and which is fixed to the wall in its original location in a manner whereby it sits on top of the original timber floorboards.
2. Reinstatement of recessed arch to match original.
3. Reinstatement of recessed display cabinet to match original.
Middle Room, Ground Floor:
4. As per item 1 above.
Hall, Ground Floor:
5. As per item 1 above.
Internal Staircase from the Ground Floor to the First Floor:
6. Removal of timber covering on internal stairs.
7. Making good the bottom tread of internal stairs to match original.
Studio, First Floor:
8. Reinstate timber wainscot boarding along eastern wall in its original position and remove item 13 to allow the proper installation of wainscoting."
Mr Braun appealed against that enforcement notice on the grounds set out in s39(1)(c), (e), (g), and (i) of the 1990 Act, essentially to the effect (c) that the alterations were not a contravention of listed building control, (e) that if they were, listed building consent ought to be granted for them, (g) that the requirements of the enforcement notice exceeded what was necessary for restoring the building to its condition before the carrying out of the works, and (i) that the steps required would not restore the former character of the building. Mr Braun understood the enforcement notice to be directed solely to reversing his own works and it was his essential case on the appeal that it was works by earlier owners rather than his works which had damaged the interior of the building, his own works constituting by contrast an improvement on the position he had inherited.
Mr Braun appealed also under s20 of the 1990 Act against the Council's failure to decide his application for listed building consent.
The Inspector appointed held an Inquiry which sat for three days in November 2001 and then, by decision letter dated 10 January 2002, dismissed Mr Braun's appeal and refused his application for listed building consent.
Mr Braun then appealed to the High Court (a) under s65 of the 1990 Act against the Inspector's decision on his s39 appeal against the Council's enforcement notice and (b) under s63 of the 1990 Act (strictly speaking a statutory challenge) against the Inspector's decision on his s20 appeal.
Ouseley J heard both appeals on 18 October 2002 and, by his reserved judgment handed down on 19 December 2002, allowed them. In accordance with s 65 of the 1990 Act and RSC Order 94 r 13(7) the enforcement notice appeal (the main matter) was thereby remitted to the Secretary of State for re-hearing and determination by him in accordance with the court's opinion.
The Secretary of State now appeals against Ouseley J's order (a second appeal so far as the enforcement proceedings are concerned) with the permission of Hale LJ. It is the appellant's contention that the judge below fundamentally misdirected himself in point of law. The owner of a listed building can be enforced against in respect of any unauthorised works undertaken since the building was listed, not merely those carried out during his own occupation of the building. Ouseley J, it is submitted, held (or at least assumed) the contrary.
Before the Inspector the Council was represented by their Assistant Head of Legal Services. Before the judge the Council did not appear, the Secretary of State being represented by Mr Forsdick of counsel. Before us the Secretary of State was represented by Mr Litton and we are greatly indebted to him for his most able and helpful submissions. At all three stages Mr Braun has acted in person, and to him too we are grateful for his help.
Before describing further the course of proceedings to date and the issues now arising it is convenient next to set out the most directly relevant provisions of the 1990 Act:
"7 Subject to the following provisions of this act, no person shall execute or cause to be executed any works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest, unless the works are authorised.
…
9(1) If a person contravenes section 7 he shall be guilty of an offence.
(2) Without prejudice to subsection (1), if a person executing or causing to be executed any works in relation to a listed building under a listed building consent fails to comply with any condition attached to the consent, he shall be guilty of an offence.
…
38(1) Where it appears to the local planning authority -
(a) that any works have been or are being executed to a listed building in their area; and
(b) that the works are such as to involve a contravention of section 9( 1) or (2),
they may, if they consider it expedient to do so having regard to the effect of the works on the character of the building as one of special architectural or historic interest, issue a notice under this section (in this Act referred to as a 'listed building enforcement notice').
(2) A listed building enforcement notice shall specify the alleged contravention and require such steps as may be specified in the notice to be taken within such period as may be so specified -
(a) for restoring the building to its former state; …
39(1) A person having an interest in the building to which a listed building enforcement notice relates or a relevant occupier may appeal to the Secretary of State on any of the following grounds -
…
(b) that the matters alleged to constitute...
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...Moran Holdings Ltd v Carden & Godfrey (a irm) (1999) 73 Con LR 28 at [31], per HHJ Wilcox; Braun v First Secretary of State [2003] EWCA Civ 665. It may be an ofence to demolish or alter a heritage building without statutory approval: see Caralis v Smyth (1988) 4 BCL 248 [NSW Ct Crim App]. G......