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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Manolete Partners Plc v Hastings Borough Council  EWCA Civ 562 (07 May 2014)
Cite as:  1 WLR 4030,  EWCA Civ 562,  WLR(D) 193,  BLR 389,  WLR 4030
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ON APPEAL FROM THE TECHNOLOGY AND CONSTRUCTION COURT, QUEEN'S BENCH DIVISION
MR JUSTICE RAMSEY
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE AIKENS
LORD JUSTICE PATTEN
| MANOLETE PARTNERS PLC
|- and -
|HASTINGS BOROUGH COUNCIL
Mr Samuel Townend (instructed by Gaby Hardwicke) for the Respondent
Hearing dates: 22nd November 2013 and 3rd April 2014
Crown Copyright ©
Lord Justice Jackson:
|Part 1. Introduction||(paragraphs 2 to 11)|
|Part 2. The facts||(paragraphs 12 to 34)|
|Part 3. The present proceedings||(paragraphs 35 to 41)|
|Part 4. The appeal to the Court of Appeal||(paragraphs 42 to 45)|
|Part 5. The legislative history||(paragraphs 46 to 63)|
|Part 6. Was Stylus in default within the meaning of section 106 of the Building Act 1984?||(paragraphs 64 to 83)|
|Part 7. Absent section 78 of the 1984 Act, did Stylus have a good cause of action against the Council?||(paragraphs 84 to 96)|
|Part 8. Executive summary and conclusion||(paragraphs 97-98)|
(1) If it appears to a local authority that a building or structure, or part of a building or structure, is in such a condition, or is used to carry such loads, as to be dangerous, the authority may apply to a magistrates' court, and the court may —
(a) where danger arises from the condition of the building or structure, make an order requiring the owner thereof —
(i) to execute such work as may be necessary to obviate the danger or,
(ii) if he so elects, to demolish the building or structure, or any dangerous part of it, and remove any rubbish resulting from the demolition, or
(b) where danger arises from overloading of the building or structure, make an order restricting its use until a magistrates' court, being satisfied that any necessary works have been executed, withdraws or modifies the restriction.
(2) If the person on whom an order is made under subsection (1)(a) above fails to comply with the order within the time specified, the local authority may —
(a) execute the order in such manner as they think fit, and
(b) recover the expenses reasonably incurred by them in doing so from the person in default,
and, without prejudice to the right of the authority to exercise those powers, the person is liable on summary conviction to a fine not exceeding level 1 on the standard scale."
"Dangerous building – emergency measures
(1) If it appears to a local authority that—
(a) a building or structure, or part of a building or structure, is in such a state, or is used to carry such loads, as to be dangerous, and
(b) immediate action should be taken to remove the danger, they may take such steps as may be necessary for that purpose.
(2) Before exercising their powers under this section, the local authority shall, if it is reasonably practicable to do so, give notice of their intention to the owner and occupier of the building, or of the premises on which the structure is situated.
(3) Subject to this section, the local authority may recover from the owner the expenses reasonably incurred by them under this section.
(4) So far as expenses incurred by the local authority under this section consist of expenses of fencing off the building or structure, or arranging for it to be watched, the expenses shall not be recoverable in respect of any period—
(a) after the danger has been removed by other steps under this section, or
(b) after an order made under section 77(1) above for the purpose of its removal has been complied with or has been executed as mentioned in subsection (2) of that section.
(5) In proceedings to recover expenses under this section, the court shall inquire whether the local authority might reasonably have proceeded instead under section 77(1) above, and, if the court determines that the local authority might reasonably have proceeded instead under that subsection, the local authority shall not recover the expenses or any part of them.
(6) Subject to subsection (5) above, in proceedings to recover expenses under this section, the court may –
(a) inquire whether the expenses ought to be borne wholly or in part by some person other than the defendant in the proceedings, and
(b) make such order concerning the expenses or their apportionment as appears to the court to be just,
but the court shall not order the expenses or any part of them to be borne by any person other than the defendant in the proceedings unless it is satisfied that that other person has had due notice of the proceedings and an opportunity of being heard.
(7) Where in consequence of the exercise of the powers conferred by this section the owner or occupier of any premises sustains damage, but section 106 (1) below does not apply because the owner or occupier has been in default –
(a) the owner or occupier may apply to a magistrates' court to determine whether the local authority were justified in exercising their powers under this section so as to occasion the damage sustained, and
(b) if the court determines that the local authority were not so justified, the owner or occupier is entitled to compensation, and section 106 (2) and (3) below applies in relation to any dispute as regards compensation arising under this subsection."
"Compensation for damage
(1) A local authority shall make full compensation to a person who has sustained damage by reason of the exercise by the authority, in relation to a matter as to which he has not himself been in default, of any of their powers under this Act.
(2) Subject to subsection (3) below, any dispute arising under this section as to the fact of damage, or as to the amount of compensation, shall be determined by arbitration."
"the Defendant is liable to the Claimant to make full compensation under section 106 of the Building Act 1984 for any damage sustained by reason of the exercise by the Defendant of its powers under Section 78 of the Building Act 1984 in preventing all public access to Stylus Sports Limited's premises on Hastings pier between 16 June 2006 and 12 September 2006."
i) Stylus was "in default" within the meaning of section 106 of the 1984 Act. The judge erred in holding otherwise.
ii) The judge erred in holding that, absent section 78 of the 1984 Act, Stylus would have had a good cause of action against the Council. Any action in nuisance which Stylus may have brought against the Council would have been barred by the ex turpi causa rule.
I shall refer to these two lines of argument as ground (i) and ground (ii).
"Where any person sustains any damage by reason of the exercise of any of the powers of this Act, in relation to any matter as to which he is not himself in default, full compensation shall be made to such person by the local authority exercising such powers; and any dispute as to the fact of damage or amount of compensation shall be settled by arbitration in manner provided by this Act, or if the compensation claimed does not exceed the sum of twenty pounds, the same may at the option of either party be ascertained by and recovered before a court of summary jurisdiction."
This provision for compensation is substantially the same as section 106 of the Building Act 1984. In particular it includes the phrase "in relation to any matter as to which he is not himself in default". This is almost identical to the phrase which the court is required to construe in the present case, namely "in relation to a matter as to which he has not himself been in default". I shall refer to this phrase as it appears in both Acts as "the default proviso".
"The Council must do something which, absent the power given to it under s.78 of the 1984 Act, would amount to a good cause of action which would be actionable by the Claimant for the damage suffered."
Lord Justice Aikens:
Lord Justice Patten: