Fenland District Council v Rueben Rose (Properties) Limited

Section 44A of the Planning (Listed Buildings & Conservation) Act 1990 permits a local planning authority to seek an injunction in the County Court to restrain unauthorised works to a listed building, even where the alleged invalidity resulted from the authority’s own error. Administrative incompetence and delay concern the court’s discretion, not its jurisdiction. The County Court may examine the validity of listed building consent for injunction purposes, although it cannot make a formal declaration of invalidity. The public-law exclusivity principle in O'Reilly & Others v Mackman & Others [1983] AC 237 does not displace this specific statutory remedy where judicial review would be ineffective and there is a clear alternative remedy.

Fenland District Council appealed from a preliminary-issue decision by Judge de Mille at Peterborough County Court on 4 October 1999. The Council sought an injunction under s44A of the Planning (Listed Buildings & Conservation) Act 1990 to restrain threatened works to listed buildings, after discovering that it had failed to notify the Secretary of State of the 1993 listed building consent as required by s13(1). The County Court held that it had jurisdiction to grant an injunction, although the discretion and remaining issues were undecided. The central issue before the Court of Appeal was whether that statutory jurisdiction existed and whether the consent’s validity could be examined without judicial review.

The appeal was dismissed unanimously. Judge LJ delivered the judgment, and Otton LJ agreed.

1. Section 44A of the Planning (Listed Buildings & Conservation) Act 1990 gives a local planning authority power to apply for an injunction where restraint of an actual or apprehended contravention of s9(1) is necessary or expedient. The statutory jurisdiction extends expressly to the County Court. It is not excluded merely because the threatened unauthorised works result from the authority’s own error or administrative incompetence. Those matters concern the court’s discretion whether to grant relief.
2. The principle stated in O'Reilly & Others v Mackman & Others [1983] AC 237 did not prevent the application. The Council was not seeking to challenge its own administrative decision by judicial review. It was seeking to restrain an apprehended statutory contravention. Judicial review could not provide an effective and immediate remedy and would have been subject to the clear-alternative-remedy principle.
3. Although the County Court could not make a formal declaration that the consent was invalid, it could examine the validity of the consent for the purpose of deciding the injunction application. At the interlocutory stage, the judge only needed reasonable grounds for concluding that the works were not authorised. A formal declaration was not a condition precedent.
4. The Court declined to express views on the consequences of works already carried out under a flawed authorisation, including possible prosecution issues, because those matters did not arise for decision and had not been fully argued. The case was to return to the County Court for exercise of its discretion and determination of the remaining issues.

• Court of Appeal (Civil Division) — In [2000] EWCA Civ 92, the appeal was dismissed. The court upheld the County Court’s jurisdiction to grant an injunction.
• Peterborough County Court — Judge de Mille held on 4 October 1999 that the court had jurisdiction under s44A to hear and determine the Council’s claim. The exercise of discretion and remaining issues were left undecided.