Bello, R (on the application of) v London Borough Council Of Lewisham

Permission to appeal may be granted where a proposed challenge raises an arguable issue about whether a public authority revived a dormant statutory enforcement notice for an improper purpose. The court need not conclude at the permission stage that the appeal will succeed. Relevant issues included the effect of prolonged delay, alleged prejudice caused by established use of the premises, and whether noise complaints or possible retaliation supplied the true motivation for enforcement under Building Act 1984, section 36. The court granted permission without determining those merits.

Mr Bello applied in person for permission to appeal the Administrative Court judgment of Silber J concerning a notice served under section 36 of the Building Act 1984. The notice had been served in 1988, followed by inactivity until 2000, when the council sought to reactivate it. The proposed appeal challenged the effect of the delay and argued that the council was relying on building-control powers to address noise complaints or to penalise a complaint to the ombudsman. The central issue was whether those matters disclosed an arguable legal challenge to the reactivation.

1. Permission granted. The court was not satisfied that the proposed appeal would necessarily succeed, but considered that Mr Bello should have the opportunity to present his strongest argument before two Lords Justices.
2. The principal arguable issue was whether the council’s true motivation in enforcing the dormant notice was a proper building-control purpose. The council’s material referred both to serious building deficiencies and to complaints about noise from the religious use of the extension. It also recorded that planning-enforcement powers had been allowed to lapse.
3. The court recognised an argument that the noise complaints could be relevant when deciding whether to enforce the notice. Conversely, it was arguable that the Building Act reference was merely a vehicle for addressing a perceived public nuisance or possibly punishing Mr Bello for complaining to the ombudsman.
4. Silber J had considered that the delay caused no injustice because the church had been able to use the building during the intervening period. Mr Bello argued that the community had become accustomed to that use and would suffer prejudice when it ended. The Court of Appeal did not finally resolve that issue.
5. The application was granted for a half-day hearing before two Lords Justices. There was no order for costs.

• Court of Appeal (Civil Division): granted permission to appeal on the proposed grounds concerning delay, improper purpose and the council’s reliance on building-control enforcement. No order for costs.
• Administrative Court: Silber J had given judgment concerning the council’s reactivation of a section 36 notice under the Building Act 1984.