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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bello, R (on the application of) v Lewisham [2003] EWCA Civ 353 (21 February 2003) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2003/353.html Cite as: [2003] EWCA Civ 353 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
(MR JUSTICE SILBER)
Strand London, WC2 | ||
B e f o r e :
LORD JUSTICE KEENE
____________________
THE QUEEN ON THE APPLICATION OF BELLO | Appellant/ | |
-v- | ||
LONDON BOROUGH OF LEWISHAM | Respondent/ |
____________________
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR C BOYLE (instructed by London Borough of Lewisham, Legal Services, London SE6) appeared on behalf of the Respondent
____________________
(APPROVED BY THE COURT)
Crown Copyright ©
"In view of the continual nuisance emanating from the Building the Council are now 'minded' to enforce the terms of the original Notice served under Section 36 of the 1984 Building Act. The matter will therefore be considered at the Council's Executive Committee in early April of this year."
That letter elicited a reply from Mr Bello, dated 15 March 2000, in which he sets out a variety of points, including the fact that there was in his view:
"... no nuisance emanating from the building, the sole use of which is for worship as a church. It is now well over ten years since the back addition was erected hence such a demolition is statute-barred.
I have no further views to put forward to the Committee as the Council would be breaking the law again should such demolition order be pursued after ten years."
"Purpose of the Report
To advise the Committee of the current situation with regard to a property situated at 46 New Cross Road. An extension was constructed in 1988, which was illegal in respect of the 1984 Building Act and the 1971 Planning Act. The use of the main building and the extension has caused problems to adjacent residents for a number of years and is currently the subject of an ombudsman's complaint against the Council. This report concerns action the Council could take to alleviate some of these concerns."
Under the heading "Policy Context", the writer states:
"It is Council Policy to ensure the Building Acts & Building Regulations are correctly applied. This particular addition to the building has been erected with complete disregard for almost every regulation specified in the legislation. In particular, the building has inadequate fire precautions and no provision for thermal insulation.
The use of this illegal extension currently involves a form of religious gathering. Its location is unsuitable for these activities and numerous complaints have been received from occupants of adjacent properties concerning the high levels of noise that are generated. It is Council policy to reduce as far as possible the amount of unreasonable noise suffered by residents. Removing this structure would greatly assist this objective."
It is then recommended that the owner of the building be advised that the Council intend to enforce the Building Act Notice. The background to the matter is then set out both under the Building Acts and the Planning Acts and the position appears to have been that various resolutions were passed in the late 1980s but no action was taken on them. The writer of the report says:
"Regrettably, no such action was ever taken. Due to time constraints it is not now possible to take action under planning legislation. In Building Control terms (which is the main concern of this report) the situation is rather different."
It then sets out that the notice was served, it was not complied with; an appeal was made, it was unsuccessful; there was a judicial review in 1990 when the owner's arguments against the serving of the Building Notice were finally rejected. The writer of the letter says:
"There was therefore no legal reason why the Council could not undertake the demolition of the structure.
The Head of Building Control at the time therefore instructed the Council's dangerous structure contractor to demolish the structure. They arrived on the site on the 8 May 1990. Mr Bello was on site with several workmen. He stated that they were about to demolish the structure and that the Council's action was unnecessary. The Council's contractors were withdrawn and did not return."
Then it is said that no further action was taken in terms of Building Act enforcement, and that the reason for such decision is not clear. The letter continues:
"The situation then remained relatively 'dormant' for a number of years although there were complaints about the nuisance being caused. This culminated at the early part of this year with a complaint to the ombudsman over the Council's inaction. It was felt that the Council did not have a realistic defence against the allegations. However, it was decided to re-visit the situation with regard to Building Act enforcement."
Then it is recorded that the Council said that such action could be taken. There are then various references to legal considerations: the Human Rights Act, and then a reference to environmental implications:
"The existing structure is an eyesore and a nuisance and there is no doubt that the local environment will be considerably improved by its removal. In time it is likely to deteriorate to being an actual risk to public safety, it is in the Borough's best interests for it to be removed."
In due course that report led to the resolution now under attack; namely, that the owner of the building be advised that the Council intend to enforce the notice served on the property in 1988, and that the owner be told that if the structure is not removed within a specified period, the Council will take action in default.
"However, that is not the end of the matter. It is in my judgment arguable that it was unreasonable to revive the power to demolish after such a great delay and that section 36 notices, like compulsory purchase notices, should not hang over properties indefinitely. ...
On that limited basis I am prepared to grant permission to appeal."
This he did. But the order which was drawn up by the associate and then, judging by its face, amended pursuant to a direction of Otton LJ a month later, reads as follows:
"IT IS ORDERED THAT the claimant's renewed application herein sealed on 2nd August 2000 be granted, and the matter be remitted to the Administrative Court for hearing."
This was unfortunate in some ways because it does not specifically refer to the very limited basis upon which Otton LJ gave permission to appeal.