Fenland District Council v Reuben Rose (Properties) Ltd

Developer applying for listed building consent – Council granting consent but failing to notify Secretary of State – Developer indicating intention to proceed with works – Council seeking injunction to prevent further works – Whether county court having jurisdiction to grant injunction – Section 44A of Planning (Listed Buildings and Conservation) Act 1990 – County court having jurisdiction – Appeal dismissed The defendant property developer owned the freehold of land at 15-21 Market Street, Whittlesey. The site included 17th century buildings at 19 and 21 Market Street that were listed as buildings of special architectural or historical interest. In 1993 the claimant council granted planning permission and listed building consent for the properties. The defendant complied with all the relevant procedural requirements imposed on it, but the council failed to notify the Secretary of State of the application for listed building consent, as they were obliged to do by section 13(1) of the Planning (Listed Buildings and Conservation) Act 1990. In August 1997 the validity of the listed building consent was raised at a meeting between the council’s conservation officer and the defendant’s representatives. In June 1998 the council informed the defendant that the purported grant of listed building consent was void and that any further works would constitute an offence. In July 1998 the defendant replied stating that it had been advised that the council could not challenge the validity of the consent and that it intended to proceed with the work on the properties. The council applied to the court seeking: (i) an injunction to restrain the defendant from carrying out any work of demolition, alteration or extension to the properties prior to “such consent as may hereafter be granted”; and (ii) a declaration that the 1993 listed building consent was void. A hearing of a preliminary issue was ordered as to whether the court had jurisdiction to grant the injunction sought by the council. The county court held that section 44A of the 1990 Act vested the court with the jurisdiction to hear and adjudicate the claim. The defendant appealed, contending that the council had failed to observe the principle in O’Reilly v Mackman [1983] AC 237. It was submitted that the council should have sought judicial review of the grant of listed building consent in 1993 and that injunctive relief under section 44A of the Act was not available to call into question the validity of that administrative act. Held: The appeal was dismissed. 1. It was clear from the language of section 44A that it extended power to the county court to order an injunction when material damage was about to be done to a listed building through unauthorised works. There was nothing to suggest that the remedy provided by section 44A was unavailable merely because the potential damage to the building, or the unauthorised works, had originally stemmed from an error or oversight by the planning authority that purported to grant the necessary authorisation. Neither contributory negligence nor administrative incompetence by the council precluded that application. The purpose of the legislation was to protect listed buildings from unauthorised work, whether or not that might create embarrassment or difficulty for the council. 2. Once the council had discovered their error, albeit at a very late stage, they had been entitled, indeed bound, to act. Since the defendant intended to proceed with unauthorised works, it was not an abuse of process for the council to seek to persuade the county court to exercise its protective jurisdiction. Criticism of the council’s conduct fell to be considered not on the question of primary jurisdiction, but on the separate question of whether the court should exercise its jurisdiction to grant an injunction. In reality, judicial review could not have provided an effective and immediate remedy, and, given the jurisdiction provided by section 44A, an application would also have failed on the ground of a clear and alternative remedy. Andrew Gore (instructed by the solicitor to Fenland District Council) appeared for the claimants; Barry Payton (instructed by Hewitson Becke & Shaw, of Cambridge) appeared for the defendant. Thomas Elliott, barrister