A better view from the Berg?

Construction iStock 000002149516XSmall 146x219Local planning authorities looking to develop depressed areas should welcome a recent ruling on the issuing of a s. 215 TCPA notice, write Chris Woodthorpe and Donna Radcliffe.

Section 215 of the Town and Country Planning Act (the Act) enables local planning authorities (LPAs) to take steps requiring land or buildings to be cleaned up if their condition is deemed to adversely affect the amenity of the area in which they are situated. The mechanics of how the work is achieved vary from case to case with some LPAs requiring the recipient to undertake the work whereas others carry it out themselves. 

The scope of the works that can be required by virtue of a section 215 notice are wide-ranging and can include tidying, clearance, planting, demolition, re-building, external repairs and repainting. 

However, the Act does not provide a definition of 'amenity'. Under a report commissioned by the Office of the Deputy Prime Minister in 2005, LPAs were advised that what may be considered as 'amenity' in one area may not be deemed as such in another. Although the report sought to reassure LPAs that a well constructed case would rarely be successfully appealed, the lack of a coherent approach to the issue remained a point of concern.

Similarly, the absence of terms such as 'repair' and 'maintenance' from the Act has meant that LPAs were uncertain as to their remit in issuing section 215 notices. Consequently, whilst central government has urged LPAs to use section 215 notices as a means to improving local areas, they lacked both a statutory and common law framework to do so. As a result, it is suggested that the new guidance produced by the Berg case will be widely welcomed by LPAs who are keen to develop depressed areas. Due to the criminal sanctions that attach to a failure to comply with a section 215 notice, this new guidance is likely to be a highly effective method of achieving this.

Berg v Salford – the facts

The appellant owned commercial premises on a main road which were situated between a fast food takeaway and a taxi office. The area was generally considered to be in need of regeneration and in June 2009 the LPA identified the appellant's property as having an adverse impact on the local area. Ultimately, a section 215 notice was served on the appellant in November 2010 requiring several categories of work to be done, including:

  • replacing the existing window boarding with a single replacement board;
  • cleaning and preparing exterior woodwork, removing all advertisements and replacing rotten timber with replacement woodwork, in a manner appropriate to the property and surrounding area;
  • painting the window boarding.

The notice was appealed to the Magistrates Court who dismissed the appeal. Following a further dismissal by the Crown Court, the appellant took his case to the High Court, whose opinion was sought on a number of questions. 

In issuing their judgment, the High Court clarified two important issues. The first point which the court addressed was the extent to which a LPA can use a section 215 notice to order works that go beyond what is strictly required for maintenance.

On this point, the court held that the distinction between maintenance and improvement was meaningless. The judgment notes that the purpose behind the legislation was to improve the amenity of local areas. As such, the court reasoned that maintenance would inevitably lead to improvement and striving to distinguish between the two would be futile. In future therefore, LPAs will have greater room for manoeuvre when issuing section 215 notices as they will have less cause for concern when considering if their notices go beyond what is strictly necessary for maintenance of an area.

The second point that the court looked at is how the 'amenity' of an area ought to be interpreted. On this, the most important guidance which the court provided was on how far a property should be discernible when considering its impact on the surrounding area. Previously, LPAs had to overcome the problem of determining which specific property was affecting the surrounding area.  In some areas, this was not always possible as one property was often indistinguishable from another. In Berg, the court held that the property which was due to be served a notice need not be obviously separate from the other properties in the immediate area. To insist on such would be to defeat the underlying purpose of the legislation.

Comment

It is anticipated that the Berg case will be a useful tool for LPAs in attempting to tackle the problem of regeneration. Although it could be argued that much of the judgment simply repeats the advice from central government, the case nevertheless provides a stronger basis for LPAs wishing to use section 215 notices to improve local areas.

To what extent property owners will be disadvantaged by the case remains to be seen. There exists the possibility that the Berg case will move power too far in favour of LPAs as their capacity for mandating improvement works seems almost indefinite in light of the case.  Although section 217 grants a right of appeal to property owners - which in theory ought to curtail LPAs powers to what is strictly necessary - the confirmation that there is no distinction between 'maintenance' and 'improvement' in Berg would suggest that what is strictly necessary might be interpreted quite broadly. If this is the case, the looming spectre of a section 215 notice may simply be enough to encourage property owners to address any outstanding regeneration issues that they have. If so, it is unlikely that the court of public opinion will assist property owners in a way that the High Court did not.

Chris Woodthorpe is a partner and Donna Radcliffe is a lawyer at Walker Morris. They regularly contribute articles and updates to reach... ®, the free Walker Morris knowledge database and alerter service.