Bello, R (on the application of) v Lewisham

A long delay in enforcing a valid demolition notice does not, by itself, make enforcement unlawful. Relevant considerations include whether the authority abandoned the notice or changed its purpose, and whether delay caused prejudice or induced a change of position making enforcement unjust. In deciding when to activate a notice, a council may consider hardship to the owner, hardship to neighbours and public reaction to the building, including noise. Those considerations do not establish an improper motive where valid building-control objections remain.

The appellant sought judicial review of Lewisham’s decision in April 2000 to enforce a demolition notice served in 1988 under section 36 of the Building Act 1984 against an unauthorised rear extension used as a church. Permission was initially refused by Richards J, but Otton LJ granted limited permission to challenge whether enforcement after the delay was unreasonable. Silber J dismissed the claim, reported at [2002] EWHC 1332 (Admin). The appeal concerned the effect of the delay and whether the council had acted for an extraneous purpose, including in response to neighbours’ complaints about noise.

Lord Justice Schiemann delivered the judgment, and Lord Justice Keene agreed. The appeal was dismissed.

1. Scope of the appeal. The court upheld the decision to confine the judicial review to the limited grounds on which permission had been granted. Otton LJ’s drawn order did not accurately record that limitation, but his written judgment made his intention clear. If necessary, the formal order could have been corrected on application under the slip rule.
2. Delay. The notice served under section 36 of the Building Act 1984 remained valid after the earlier challenge to it had failed. The council’s inactivity between 1990 and 2000 did not, without more, prevent enforcement. In Grice v Dudley Corporation [1958] Ch 329, the purpose of reviving the notice differed materially from the authorised purpose and there had been an intention to abandon it. Those features were absent here. The appellant had suffered no particular prejudice and had not changed his position so that enforcement would be unjust.
3. Improper motive. The court doubted whether this issue fell within the permission granted. Even assuming jurisdiction, the argument failed. The council was entitled to decide when and whether to enforce a valid notice and could take account of hardship to the owner, hardship to neighbours and public reaction to the building, including noise. Considering those matters in fixing the timing of enforcement did not make the decision unlawful.

The appellant was ordered to pay the respondent’s costs, and permission to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division) — Appeal dismissed. Permission to appeal to the House of Lords refused.
2. High Court (Administrative Court) — Silber J dismissed the judicial review claim; the decision is reported at [2002] EWHC 1332 (Admin).
3. Court of Appeal (Civil Division) — After Richards J refused permission in July 2000, Otton LJ granted limited permission to appeal, principally concerning delay in enforcing the notice.