O'Dea v London Borough of Hillingdon
| Jurisdiction | England & Wales |
| Judge | Judge Maloney |
| Judgment Date | 11 October 2013 |
| Neutral Citation | [2013] EWHC 4407 (QB) |
| Date | 11 October 2013 |
| Court | Queen's Bench Division |
| Docket Number | Case No: 1HQ/13/0704 |
[2013] EWHC 4407 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
7 Rolls Building
Fetter Lane
London
EC4A 1NL
His Honour Judge Moloney QC
(Sitting as a Judge of the High Court)
Case No: 1HQ/13/0704
Mr J Powell (Instructed by Lock & Marlborough) appeared on behalf of the Claimant
Ms I Tajur (Instructed by Legal Department of the LB of Hillingdon) appeared on behalf of the Defendant
Approved Judgment
Friday, 11 October 2013
This is my judgment given on the return date of an injunction granted ex parte by Lang J on 20 September 2013, on the application of Mr and Mrs Timothy and Farea O'Dea against their local authority, the London Borough of Hillingdon. The order is almost sufficient to define the nature of the dispute: it is ordered that the respondent local authority be restrained from commencing any demolition or taking preliminary actions before commencing demolition at Cowmore House, Hill End Road, Harefield, Uxbridge, UB9 6LN until further order. She adjourned it for two weeks to 4 October 2013, with a time estimate of one hour, with liberty to the local authority to apply to vary or discharge.
The matter came back before another judge, Wynn Williams J, on 4 October. Possibly because he had insufficient time, he adjourned the matter for a further week. It has come before me today on a two hour estimate, and the parties have had proper opportunity to consider the evidence that has been filed and to address the issues.
It is before me on the claimants' application, subsequently issued on 1 October together with a Claim Form in the Part 7 form, for me to continue that interim injunction and on the defendant's, in effect, cross-application – (they have not made it in application form) — that, on the other hand, I should dismiss the claim entirely as an abuse of process on various procedural and substantial grounds to which I shall turn.
The background I can deal with fairly shortly. As will be obvious, there has been a long-standing dispute between the claimant home owners and the defendant local authority about various building works done on the claimants' substantial home in the green belt in Uxbridge, but specifically about a sizeable conservatory-cum — kitchen extension some five metres square. I have seen photographs of a substantial, handsome kitchen extension, of a kind that is not uncommon, but big.
The O'Deas purchased the house in about 2008. In 2009 or thereabouts they constructed this substantial conservatory extension but without planning permission. In 2010, the local authority resolved to issue an enforcement notice under section 172 of the Act. That enforcement notice required the extension to be demolished within three months and provided, by section 178 of the Act, that if the homeowner does not comply with an order within three months, then the local authority has power to enter the land and take the steps, that is to say demolish the edifice itself and recover the expenses of so doing. I should also say that it is a criminal offence for a person upon whom such an enforcement notice is served to fail to comply with it within the requisite time.
There is provision for an appeal and Mr O'Dea did indeed make such an appeal which was conducted by an inspector, but his appeal failed. The inspector held both that the structure was not a permissible development because of its effect on the green belt in the light of the already heavily built-up nature of the site, and that the family had no special human rights needs such as would warrant an otherwise impermissible development. I should say that Mrs O'Dea at least is a Muslim; they have children and it is their case that they have special needs of an Article 8 human rights nature based on their family structure, their religion and so forth which they say the local authority has to take into account, and the local authority says it has done so.
2012 appears to have been occupied largely with various applications for retrospective planning permission and the like. In 2013, so to be fair some three years after the original notice and some two years after the failure of the appeal, the local authority finally decided that the time had come to take action itself. In April 2013, the head of planning and enforcement, Mr Roger, in conjunction with some of his colleagues, appears to have taken the decision that the time had come to move in under section 178 and demolish themselves by their employed contractor.
Of course the O'Deas were given notice by letter of the local authority's intention, and given the opportunity in accordance with standard procedure to carry out the demolition themselves, or face having it done by the council in a manner perhaps less convenient and more expensive to them.
Correspondence continued over the summer, culminating on, I think, 10 September, about a month ago now, with a written notice that the council proposed to move in within three weeks and carry out the works. In the light of that, on 20 September, (which I think was a Friday evening) an application was made as I have said to Lang J in the ordinary Queen's Bench Division (not the Administrative Court), for ex parte relief in the terms that I have indicated. She granted that order, though she did say in an email that she sent to the applicants' legal advisers:
"Herewith the order. This seems to me to be a judicial review claim which should be commenced by an application for judicial review. You will need to make an application for the return date of 4 October pursuant to the order and so you can decide whether to make that application in the QBD or the Administrative Court. I have sent a separate email to Mr Brown at Hillingdon."
So Lang J indicated her preliminary view that the case was of a judicial review nature (which I interpolate would therefore suggest the likelihood that the Administrative Court was the appropriate jurisdiction) but said that it was for the applicant to decide in which court to bring the application. But I do not take her as having in any way said that whichever they decision they took would be equally correct. Rather she was saying, "It looks like judicial review to me but you are the applicant. You decide where to bring your case."
In any event, they did decide; and they decided, as I have said, to bring it by means of an ordinary Part 7 claim and an ordinary Part 23 application. It therefore came before the judges of the Queen's Bench Division, and eventually myself sitting in that capacity, in what I might call the ordinary list. This was as opposed to its being commenced by Part 8 proceedings under Part 54, the part applicable...
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