Swindon Borough Council v Forefront Estates Ltd

Under section 78 of the Building Act 1984, emergency powers are justified only where immediate action is necessary to remove danger. A dangerous condition alone is insufficient. The assessment requires consideration of the likely consequences, the likelihood of their occurrence and the seriousness of those consequences. The court reviews the local authority’s decision objectively when deciding whether it might reasonably have proceeded under section 77. Recoverable expenses are limited to works and associated measures necessary to remove the danger, and must have been reasonably incurred. Measures directed principally to preserving a listed building or protecting it against future deterioration fall outside section 78.

The claimant local authority sought to recover the cost of emergency works carried out to the roof of a dangerous listed building owned by the defendant. The claim was brought under section 78 of the Building Act 1984, following earlier urgent preservation works under section 54 of the Planning (Listed Buildings and Conservation Areas) Act 1990.

The defendant contended that the authority should instead have proceeded under section 77(1) of the 1984 Act and challenged the necessity and reasonableness of the claimed expenditure. The defendant did not appear at trial. The issues were whether immediate action was necessary, which works were recoverable, whether the expenses were reasonably incurred, and the appropriate interest, charge and costs.

Judgment for the Council. The court held that the Council was entitled to recover the expenses of the emergency roof-removal works, subject to deductions for work falling outside section 78.

1. Sections 77 and 78 address dangerous buildings, but section 78 additionally requires that immediate action should be taken. The distinction means that a dangerous state does not, by itself, justify emergency action.
2. The Council was required to assess the risk by considering the consequences of the dangerous condition, the likelihood of those consequences and their seriousness. Section 78(5) required the court to review objectively whether the Council might reasonably have proceeded under section 77(1), notwithstanding the statutory reference to what appeared to the authority.
3. The roof presented a high risk of collapse, with possible release of asbestos and lead contamination and falling masonry in a busy public area. Immediate action was therefore necessary. The possibility that workers might be exposed to danger did not itself determine the issue, although the risk of unauthorised access to the derelict building supported the Council’s decision.
4. The owner’s unsatisfactory performance did not independently justify use of section 78. The fundamental question remained whether immediate action was necessary.
5. Recoverable expenses included preliminaries, highways management, security, structural monitoring, contamination monitoring, necessary scaffolding, fencing, roof-removal works, statutory fees and relevant project-management costs. The temporary roof, related roofing design, pre-existing gable scaffolding and prolonged inspections were excluded where they preserved the listed building, addressed future water ingress or continued after the danger had been removed.
6. The Council was awarded £331,242.69 including VAT, £13,249.71 interest under section 107, and costs of £60,128.30 on the standard basis. Enforcement of the expenses and interest was to proceed by registration of a local land charge.