12 C O N T E X T 8 1 : S E P T E M B E R 2 0 0 3 Bob Kindred Section 55 appeals Use of UrgentWorks Notices remains an unfortunate rarity when there are an estimated 37,000 buildings-at-risk; and appeals against the recovery of costs by a local authority even more so.Why is this? Beyond the wording of the 1990 Act, PPG15 devotes just a single unhelpful paragraph to the recovery of costs (7.18) under section 55 leaving the mechanics shrouded in mystery and the outcome of the process subject to uncertainty. The procedures for the recovery of costs are well covered in Mynors1 and will not be rehearsed again here except to state that within 28 days of receiving a demand for payment, an owner may make representations to the Secretary of State that: • some or all of the works were unnecessary • that the arrangements have gone on for too long • that the amount specified was unreasonable, or • the recovery of it would cause hardship. of State find entirely in an appellant’s favour.The sample should give a local planning authority reasonable confidence to proceed provided the procedures are followed carefully. An additional level of uncertainty for the local authorities is how the Department of Culture, Media and Sport processes section 55 appeals.The following eight main steps may be of some help: • When a local planning authority serves a notice under section 55 it should make clear in its documentation to the owner that an appeal may be made to the Secretary of State within 28 days.The grounds on which the owner can appeal should be stated and the contact details for the Department for Culture, Media and Sport (Architecture and Historic Environment Division), DCMS, 2–4 Cockspur Street, London SW1Y 5DH) given. • When an owner does appeal to the Secretary of State, the Department will respond with a letter setting out the representations process.The owner will again be told the grounds on which he may appeal and will be given 14 days in which all correspondence will be copied between the parties.The local planning authority will be informed that the owner has appealed, and a copy of this letter will be sent to them. • The local planning authority will also be asked to send in copies of all section 54 and section 55 notices served on the owner and to confirm that the urgent works were carried out on an unoccupied building/part of the building. • There are two rounds of representations: once the owner’s first representations have been received these will copied to the local planning authority, which will be given 14 days to respond.The local planning authority’s representations are then sent to the owner and, again, the owner will be given 14 days to respond.The local planning authority’s response to this second set of representations is sent to the owner for information only. • If the owner appeals on grounds of hardship the Secretary of State will request evidence of financial status - this will usually be in the form of bank statements. • Once the two rounds of representations have come to a close the Secretary of State will examine the evidence and proceed to a determination (further questions may be asked of the parties if anything is unclear). • The Secretary of State may instruct experts on certain aspects to assist her in making a determination. • It is important to note that the Secretary of State can only consider representations which fall within the four grounds of appeal. It is common for parties to list numerous irrelevant representations which cannot be taken into account. Bob Kindred MBE.The author would like to thank the Heritage Division of the Department for Culture, Media and Sport for its help in compiling this short article. Footnotes 1 Mynors C, Listed Buildings, Conservation Areas and Monuments, Sweet & Maxwell 1999 Section 6.6.6 pp127-8 2 Readers are reminded that in the Swansea case (R v Secretary of State forWales, ex parte the City & County of Swansea) – Henbury Cottage, Southgate Road, Southgate; it was held that the local authority had the power to execute urgently necessary works, that this was a matter of judgment and it was not a precondition that the works were actually urgently necessary provided they believed them to be so. Provided that action is not irrational or invalid the authority is protected from having to pay the costs of repair if it turns out the situation was not as urgent as they supposed when needing to act quickly. It is enough (given the powers anticipate urgency) for the local authority to believe that the building needs action not that it must prove conclusively that the works are required. A review of eight recent appeals to the Secretary of State made under section 55 shows that the grounds under which appeals were made and the outcome of the determinations were as follows: The sample, although small shows that no appeals involved arguments that the temporary support or shelter continued for an unreasonable length of time; and that an owner was rather less likely to appeal against the need for the works than that they were too extensive. In only one case (hardship) did Secretary GROUNDS FOR APPEAL OUTCOME OF DETERMINATION Case 1 Unreasonable cost In favour of local planning authority Case 2 Hardship In favour of local planning authority Case 3 Works unnecessary In favour of local planning authority Case 4 Unreasonable cost, hardship Two of the owners had to pay costs, one did not (due to hardship) Case 5 Works unnecessary, unreasonable cost, hardship In favour of local planning authority Case 6 Unreasonable cost In favour of local planning authority, with some reduction in costs Case 7 Unreasonable cost In favour of local planning authority Case 8 Hardship In favour of owner
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