Liverpool City Council, R (on the application of) v Derwent Holdings Ltd

An appeal under the Building Act 1984 against a notice requiring removal of demolition debris is a full merits appeal, not a review of the local authority’s reasonableness. The site owner bears the legal and evidential burden of showing that the notice is unjustified, but where evidence is called the appellate court must form its own view of whether the statutory condition is met. On a case stated, the High Court must not substitute its own assessment of an essentially evaluative question if the lower court applied the correct test and reached a conclusion reasonably open to it. Amenity may be understood as the pleasantness of the neighbourhood, assessed in context and from the perspective of a disinterested observer.

Liverpool City Council served Derwent Holdings Ltd with a notice under section 79 of the Building Act 1984, requiring the removal of building debris remaining after the demolition of a public house. The district judge dismissed Derwent’s appeal. On appeal, the Crown Court accepted that the site was detrimental to neighbourhood amenity but held that the detriment was not serious, because the area appeared ripe for development and the site was passing through a usual stage of development.

The Council appealed by way of case stated. The issues concerned the burden of proof, the statutory meaning of serious detriment to amenity, the evidence available to the Crown Court, the scope of review on a case stated, and the construction of section 102(1) of the Act.

1. Appeal dismissed. The Crown Court had answered the statutory questions correctly. The owner bore both the legal and evidential burden, but the point had little practical significance where evidence and other material were before the court.
2. The appeal under section 102 was a full merits appeal. It was not a review of whether the Council had acted reasonably. The court hearing the appeal had to answer for itself the questions posed by section 79(2), including whether demolition material was lying on the site and whether the site was thereby in a condition seriously detrimental to neighbourhood amenity.
3. Where evidence, reports or a site view were available, the court had to form its own judgment on the statutory test. The Crown Court was entitled to consider the state of the neighbourhood and the evidence that the area was ripe for development. It was also entitled to use the perspective of a disinterested observer.
4. On a case stated, the High Court could not substitute its own view merely because it would have reached a different conclusion. The question was whether the Crown Court, exercising its own judgment and applying the correct legal test, could reasonably have reached its conclusion. Seriousness was essentially a matter of judgment. The Crown Court had taken account of the length of time that the site had remained uncleared, even though it had not expressly referred to that factor.
5. In this context, amenity reasonably meant the pleasantness of the neighbourhood. The Crown Court’s description of the development stage as usual was arguably surprising, given the delay, but was not perverse. A future court relying on its own observations of a site should ordinarily ensure that all members of the court participate in the visit; the omission caused no harm here and the comment was precautionary.

The four questions in the case stated were answered respectively: yes; the burden lay on Derwent Holdings as to both legal and evidential matters; yes; and yes. Derwent Holdings’ costs of the appeal were ordered to be subject to detailed assessment if not agreed.

• High Court (Administrative Court): appeal by way of case stated dismissed; the Crown Court’s decision allowing the owner’s statutory appeal was upheld.
• Liverpool Crown Court: on 1 December 2006, allowed Derwent Holdings Ltd’s appeal against the district judge’s dismissal of its appeal against the Council’s notice.
• District judge: dismissed Derwent Holdings Ltd’s appeal against the notice.