The Legality of Legal Notices Served at Sproughton Water Mill

The Legal Notices served on us by Babergh District Council are clearly defective, flawed, misleading, inaccurate, and could be illegal.

All Section 54(5) Planning (LBCA) Act 1990, Legal Notices clearly state:- I Quote, NOTICE IS HEREBY GIVEN that following 7 days after the date of this Notice the Council intend to execute the works specified in the attached schedule.

The legal notices does not ask us, or tell us to carry out any works, or does it give us Listed Building Consent to carry out the works ourselves, either.

The works in the schedule of works, which was attached to the Section 54(5) Planning and (LBCA) Act 1990 Legal Notices, which we have been served with, by law everybody needs Listed Building Consent before carrying out these works to a Listed Building. As the works change the character of this Listed Building.

 Charles Mynors FRTPI, ARICS, MIHBC,

of the Middle Temple, Barrister, London.

In the matter of the Planning (Listed Buildings and Conservation Areas) Act 1990 and in the matter of works carried out at Sproughton Water Mill, Suffolk

Advice

The lawfulness of the works carried out

The 1990 Act provides (at section 7) that no person shall execute any works for the alteration of a listed building in any manner which would affect its character as a building of special architectural or historic interest unless the works are authorised. Section 8 then provides (in summary) that works are authorised if they have been granted listed building consent. On the face of it, it might seem that this was the only way in which works could be authorised.

However, section 54 of that Act provides that “a local authority may execute works which appear to [it] to be urgently necessary for the preservation of a listed building”. Similarly, section 78 of the 1984 Act provides that “[a local authority] may take steps as may be necessary [to remove the danger].” Each of these provisions of itself would seem to be “authorisation”, it is after all difficult to conceive of a higher form of authorisation than an Act of Parliament. It is also noteworthy that sections 77 and 79 of the 1984 Act (under which an authority may serve a notice requiring an owner to carry out certain works to a building) each contain a final subsection explicitly stating that the power to serve a notice is subject to the provisions of the 1990 Act regarding listed buildings, whereas section 78 contains no such subsection. In other words, a private owner always needs authorisation (in the form of listed building consent) to carry out works, urgent or not, whereas a planning authority is authorised by the Act to carry out works where they are urgent.

The only other interpretation of the Act would be that an authority may carry out the works under section 54, but that it requires listed building consent, which would be from the Secretary of State (see 1990 Act, section 82). That would either impose a major delay, or mean that works would in practice almost always be authorised (retrospectively). I consider that a Court would strive to avoid reaching that conclusion.

Whilst, therefore, I agree that the works that were carried out by the Council in this case would almost certainly have required listed building consent had they been carried out by anyone else, I nevertheless conclude that because they were in fact carried out by the local planning authority they did not need such consent. It follows that, although those works may well have been carried out in such a way that they might be open to criticism (and enforcement action or even prosecution) had they been done by a building owner without listed building consent, the Council cannot be impugned in any formal action.

It is of course  true that it is perfectly open to the owner of a building which is the subject of works carried out under the authority of section 54 or section 78 to complain to the local authority that they have been carried out in a manner that is, for some reason, unsatisfactory. It is however abundantly clear from the correspondence in this case that Mr Jones has fully explored that possibility.

Advice By Charles Mynors

The Legal Notices Section 54(5) Planning (LBCA) Act 1990 are misleading, because there is no explanation with this Notice, What this Legal Notice is, Where we can get advice about this Legal Notice, or Who we can contact for information.

The Legal Notice dated 22nd May 1996, we formerly sent a letter asking for extension of time of the 7 days, to clarify the situation, but it was denied by Babergh District Council.

The Legal Notice Section 54 planning (LBCA) Act 1990, does not say anywhere on the Legal Notice that it is a Urgent Repairs Notice, which is misleading, as we understand now this is what it is more commonly known as!

Also the Legal Notice gives 7 days notice before the council intend to carry out the works, as we were served this Legal Notice by hand at 2 o’clock on the afternoon of 22nd May 1996. Two days of the 7 days notice are the weekend, this gave us just 4 working days to get advice, also knowing work had already started at the West gable or mill house gable under the Section 78(2) Building Act 1984.

Also Section 54(5) Planning (LBCA) Act 1990,Legal Notice Dated 22nd May 1996, was without a plan. Clearly, the attached schedule says that the work must be carried out in the North West corner!

As Brian Morton is now employed by Babergh District Council as Structural Engineer, and it is a report by Brian Morton which Babergh District Council are using to substantiate carrying out all this works. I used Brian Mortons own Architectural Drawing of Sproughton Water Mill and a compass to see where the North West corner is.

Clearly Brian Morton’s own Architectural Drawing of Sproughton Water Mill describes the Front Elevation as the South Elevation, the Back Elevation as the North Elevation, the gable opposite the Mill House as the West gable, and the gable to the river as the East gable.

Also this is confirmed by our compass reading inside the mill, which show where the North West corner is. See Ordnance survey map.

Also,when we received this Legal Notice on the 22nd May 1996, the so called Emergency Works under section 78(2) Building Act 1984, was being carried out, which was scaffolding at the Mill House gable or West gable.

Our only conclusion at the time, was that Babergh District Council meant the back left-hand corner of the building for works to be carried out, between the North Rear Elevation, and the West gable opposite the Mill House, as described on Brian Mortons own Architectural Drawing, but clearly this schedule is very misleading, vauge, and defective, because Babergh District Council have carried out works in the North East corner as described on  Brian Mortons own Architectural Drawing.

Also Babergh District Council’s Own Head of the Legal Department, Delwyn Burbidge agree’s the wording in the schedule was misleading and vague. See extract from letter to us, Dated 14th December 1998, from Babergh District Council. I Quote:-

7. Description of the Works

You are quite right that the notice dated 22 May 1996 specified “works” in the north west corner. I agree that it could have been worded better: The Consulting Engineer described the two elevations leading from the north corner as the western and northern elevations and thus works were required to the western elevation of the north corner which was translated in the notice as the north west corner

The Guidelines set by the Secretary of State

for the use of Section 54 by the authorities, and the works, which it is restricted and confined to, I Quote :- Guidance in PPG 15 Part 2 Paragraph 7.7 states that:- Authorities will note that these powers are confined to urgent works: in the Secretaries of State view their use should be restricted to emergency repairs to keep a building wind and weather proof, safe from collapse, or action to prevent vandalism or theft. The steps taken should be the minimum consistent with achieving this objective, and should not involve an owner in great expense.

The first key test: the works must be urgently necessary for the buildings preservation.

The key words are defined in the Oxford English Dictionary as follows:

Urgent: requiring immediate action or attention now

Preserve: keep safe or free from decay

Also case law history, should be considered, I Quote :-The extent of the work that may be included

In section 54 notice was considered, in passing, by the House of Lords In Robbins v. Secretary of State [1989] 1 W.L.R. 201; Lord Bridge there made it clear that they could only be those works which are urgently necessary to preserve the building as it subsists when the works are undertaken, that is, they cannot extend to works which may have been Or may soon become necessary.

One important fact becomes quite clear from the advice given, we could not legally or lawfully carry out the works in the Section 54 notice ourselves, or even if we had been asked to, because we did not have Listed Building Consent, which comes from Babergh District Council in South Suffolk.

IMPORTANT Section 54 notice, Dated 22nd May 1996.

Enclosed is Babergh District Councils, 9no photographs camera dated 28th May 1996, of the completed works carried out by Babergh District Council under Section 78(2) Building Act 1984 Emergency Measures.

This vast amount of work was carried out from 21st May 1996, to 28th May 1996, even though the council would not give us, listed building consent, to carry out the works ourselves. The local authority have taken steps to remove the so-called danger to the Listed building, which they considered needed to be done now.

Even though the mill had stood 200 years without needing it, the Previous owner had owned the mill 50 years, and never received any Repairs notices, now only 3 months after its been purchased by a new owner, with plans in at Babergh District Council to restore the Mill , the council said the building is in danger of collapse and started legal action against them.

It is because the Mill was purchased, beating friends of       Richard Ward Conservation Officer at Babergh District Council,who are involved with the Suffolk Mills Group to the sale of the Mill, who had been actively trying to purchase Sproughton Mill for years,unbeknown to us.

The local authority have taken steps to remove the socalled danger to the Listed building, which by doing so, the emergency measures in its self, has made the Listed building “Safe from collapse”

Now if only, 24 hours later Babergh District Council inspect the building and it appears to them to be urgently necessary for the preservation of a listed building, for them to spend £56.000.OO Extra, to make this listed building safe from collapse, then clearly they have not done the emergency works correctly, and removed the danger.

All the works in the section 54 notice Dated 22nd May 1996, were unnecessary for the preservation of this listed building, as the building had been made”safe from collapse”in the prior Emergency Measures notice, done By Babergh District Council only days earler.

Clearly the photographs show the vast amount of work carried out By Babergh District Council under the Emergency measures notice, which have”removed the danger” and made the building ”safe from collapse” on the 28th May 1996. (See Photographs).

 Charles Mynors

FRTPI, ARICS, MIHBC

of the Middle Temple, Barrister says in his book:-

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