Braun v First Secretary of State & Anor

The Court of Appeal held that a local planning authority may issue a listed building enforcement notice in respect of unauthorised works whenever carried out after the date of listing and irrespective of whether they were carried out by the current owner or by predecessors in title, because section 38 is concerned with enforcement of contraventions of section 9 not with criminal prosecution under sections 7 and 9. However, an enforcement notice must specify the alleged contravention with sufficient particularity so as to put beyond doubt which works are required to be reversed. Applying those principles, the court found that the enforcement notice in this case was ambiguous and incapable of encompassing works carried out by predecessors; the Inspector therefore erred in treating the notice as directed to all post-listing works, and the High Court was right to quash the Inspector’s decision and remit the matter for redetermination.

This case arises from enforcement proceedings under the Planning (Listed Buildings and Conservation Areas) Act 1990 following internal alterations carried out by Mr Braun to a Grade II listed house. Mr Braun carried out internal works in 2000, sought retrospective listed building consent on 10 July 2000, and was later served with a listed building enforcement notice by the London Borough of Hammersmith and Fulham. The Inspector dismissed Mr Braun’s appeal and refused listed building consent by decision dated 10 January 2002. Mr Braun then successfully challenged the Inspector in the High Court (Ouseley J), which quashed the Inspector’s decision and remitted the enforcement appeal to the Secretary of State. The Secretary of State appealed to the Court of Appeal.

Nature of proceedings and relief sought:

• The appellant (Secretary of State) sought to overturn the High Court order quashing the Inspector’s decision and to uphold the Inspector’s dismissal of Mr Braun’s appeal and refusal of listed building consent.
• Mr Braun sought to resist enforcement and to obtain retrospective listed building consent; in the High Court he had succeeded and obtained remittal to the Secretary of State.

Issues framed by the Court:

• Whether a local planning authority may enforce by way of a listed building enforcement notice against unauthorised works carried out by predecessors in title at any time after listing.
• Whether the enforcement notice in this case was intended to and did in fact specify contraventions extending back to the date of listing (1970), or whether it was confined to works carried out by the present occupier.

Court’s reasoning and disposition:

• The court concluded that the statutory power under section 38 may be exercised in respect of any works which involve a contravention of section 9 irrespective of when, after listing, those works were executed and irrespective of the identity of the person who executed them; in other words enforcement can reach works by predecessors and there is no separate time limit for listed building enforcement akin to the four-year period for operational development under general planning control.
• Nonetheless, the court held that an enforcement notice must "specify the alleged contravention" with real specificity so those against whom it is directed know what is to be reversed. If a notice is intended to require reversal of all post-listing works that intention must be made abundantly clear in the notice itself.
• Applying those principles, the court found the notice in this case was ambiguous and, on its natural reading, referred only to works carried out by Mr Braun himself. The Inspector thus erred in treating the notice as directed to all post-listing works; the High Court had therefore been correct to quash the Inspector’s decision. The matter was remitted to the Secretary of State for redetermination.
• The court additionally noted the Secretary of State’s s41(1) power to correct or vary the notice but warned that any such correction should not cause injustice to the appellant and that further inquiry would likely follow; it also observed the practical need for better record-keeping by authorities and caution by purchasers of listed buildings.

Appeal dismissed. The court held that local planning authorities may enforce against unauthorised works carried out at any time after listing (including works by predecessors), because section 38 is concerned with enforcing contraventions of section 9 irrespective of who carried them out. However, an enforcement notice must specify the alleged contravention with sufficient particularity. The enforcement notice in this case was ambiguous and insufficient to support enforcement against works carried out by predecessors, so the Inspector wrongly treated it as such; the High Court order quashing the Inspector’s decision and remitting the matter was therefore upheld.

Appeal to the Secretary of State from an Inspector’s decision dated 10 January 2002 (dismissal of Mr Braun’s appeal and refusal of listed building consent). Mr Braun then challenged the Inspector under section 65 and section 63 in the High Court (Ouseley J), which by judgment of 19 December 2002 allowed the challenges and remitted the enforcement appeal to the Secretary of State. The Secretary of State obtained permission to appeal to the Court of Appeal, which delivered the present judgment [2003] EWCA Civ 665 and dismissed the appeal, remitting the matter to the Secretary of State for redetermination in the light of the Court of Appeal’s judgment.