Braun v First Secretary of State & Anor

Listed-building enforcement is distinct from criminal liability. Under section 38 of the Planning (Listed Buildings and Conservation Areas) Act 1990, a current owner may be subject to enforcement for unauthorised works carried out after listing, whether by the owner or a predecessor in title. Criminal liability under sections 7 and 9 remains personal to the person who executed or caused the works. An enforcement notice must specify the alleged contravention with sufficient specificity to make clear which works are to be reversed. If the authority intends to enforce against all relevant works since listing, it must make that intention abundantly plain. An ambiguous notice cannot fairly be treated on appeal as encompassing earlier works.

Christian Braun and his wife owned a listed building in London. After carrying out internal alterations, Mr Braun applied retrospectively for listed building consent. The local planning authority instead served a listed building enforcement notice. An Inspector dismissed his enforcement appeal and refused consent.

Mr Braun appealed to the High Court under sections 65 and 63 of the Planning (Listed Buildings and Conservation Areas) Act 1990. Ouseley J allowed both appeals and remitted the enforcement matter. The Secretary of State appealed to the Court of Appeal. The central issues were the temporal scope of listed-building enforcement powers and whether the notice clearly extended to works carried out by predecessors in title.

Simon Brown LJ gave the judgment, with Laws and Longmore LJJ agreeing. The Secretary of State’s appeal was dismissed with costs, and the matter was remitted for redetermination.

1. Scope of enforcement. Section 38 of the Planning (Listed Buildings and Conservation Areas) Act 1990 permits enforcement in respect of works which in fact involved a contravention of section 9, whenever and by whomsoever the works were carried out, provided they post-dated listing. This differs from prosecution under sections 7 and 9, which could not be brought against an owner for works carried out by predecessors. The power therefore extended to unauthorised works undertaken by predecessors after the building was listed.
2. Specification of the notice. Section 38(2) required the notice to specify the alleged contravention with real specificity, sufficient to put beyond doubt which works were to be reversed. The notice in this case alleged works which appeared to be Mr Braun’s own works and contained no reference to the 1970 listing date. The word original did not clearly indicate restoration to the condition at listing.
3. Effect of ambiguity. The notice was at best ambiguous and was not apt to encompass works carried out before Mr Braun acquired the building. The Inspector should not have rejected Mr Braun’s grounds of appeal on the assumption that he was required to restore the building to its 1970 state. The High Court was therefore right to quash the Inspector’s enforcement decision. The challenge concerning listed building consent necessarily also succeeded because the proper extent of any restoration requirement affected that decision.
4. Other points. The Court did not endorse the criticism that the Inspector had to contrast his reasons with the Council’s views: on a complete appeal, the Inspector’s task was to give his own reasons. By way of additional guidance, any correction or variation under section 41(1) would require a further inquiry and careful consideration of possible injustice arising from the earlier proceedings, expense and evidence.

The Court distinguished the limited assistance offered by Bath City Council v Secretary of State for the Environment (1983) 47 P&CR 663, where the present issue had not been raised.

1. Court of Appeal (Civil Division) — Dismissed the Secretary of State’s appeal, with costs, and remitted the matter to the Secretary of State for redetermination in accordance with the judgment.
2. High Court of Justice, Queen’s Bench Division (Administrative Court) — Ouseley J allowed Mr Braun’s appeals against the Inspector’s enforcement and listed-building-consent decisions and remitted the enforcement appeal.