C O N T E X T 9 1 : S E P T E M B E R 2 0 0 5 This article touches upon two essentially unrelated issues that happened both to arise recently in a decision of the High Court, Chant v Secretary of State, reported briefly at [2003] JPL 1200 and (2002) 28 EG 127 (CS) (a transcript can be obtained on the Internet service Lawtel). The first is the situation that sometimes arises where a historic building is being used, perfectly lawfully, for a purpose that is inevitably leading to its disrepair – and perhaps, slowly but surely, to its eventual collapse. For example, a group of listed farm buildings may be used for a variety of informal uses such as vehicle repairs, storage of building materials, and miscellaneous light industry, with complete disrespect for the condition of the buildings and their setting. This was the problem at Home Farm, a listed building in Somerton, a small market town in Somerset. The local authority took action that ultimately caused the whole issue to appear in the High Court. The second is the vexed issue of whether listing is a breach of human rights – which has been a source of mild anxiety in certain quarters since the passage of the Human Rights Act 1998. This was touched on in Chant, and also in one or two other relevant recent decisions. The problem of unsuitable uses In such a situation, there is no point in the local planning authority serving an urgent repairs notice. The problem is real, but not immediate. Nor is it appropriate for it to serve a section 215 notice, since it would be possible to appeal against it on the ground that the condition of the building is due to the carrying on of operations or a use of land which is not in contravention of planning control. And it may be that, in such circumstances, compulsory purchase of the building would not achieve anything either, since a new owner would not be willing to spend the money necessary to repair the buildings if they were still going to be used in an unsuitable way. The same would apply where buildings (including sheds and so forth) spoiling the setting of listed buildings or monuments – or alterations or extensions to unlisted buildings – have been allowed to remain for more than four years, so that it is no longer possible to take enforcement action to secure their removal. Alterations to listed buildings themselves can of course be the subject of enforcement action indefinitely (see the recent decision of the Court of Appeal in Braun v Secretary of State) but that does not apply where the erection of the shed, or whatever, did not need listed building consent in the first place. In other words, it is the use that is the problem; and until that is brought to an end, the condition of the buildings will not improve, and they may in the long run be lost altogether. But where that use is lawful (whether or not it has been the result of a formal grant of planning permission) enforcement action will not succeed in bringing it to an end. Thus the only option in such a case is for the planning authority to make a discontinuance order under the Planning Act – and to pay compensation. Discontinuance action Section 102(1) of the Town and Country Planning Act provides as follows: ‘If, having regard to the development plan and to any other material considerations, it appears to a local planning authority that it is expedient that in the interests in the proper planning of the area (including the interests of amenity), (a) that any use of land should be discontinued, or that any conditions should be imposed on the continuance of a use of land; or (b) that any buildings or works should be altered or removed, they may by order (i) require the discontinuance of that use, or (ii) impose such conditions as may be specified in the order on the continuance of it, or (iii) require such steps as may be so specified to be taken for the alteration or removal of the buildings or works, as the case may be.’ Equivalent provisions are in section 71 of the Scottish Planning Act and article 39 of the Northern Ireland Order. LEGAL BRIEFING Listed buildings: unsuitable uses, and human rights Charles Mynors and Alex Booth ask: what can be done where a historic building is being used for a purpose that is leading to its disrepair? And is listing a breach of human rights?
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