Dangerous buildings and structures

The following Planning practice note provides comprehensive and up to date legal information covering:

  • Dangerous buildings and structures
  • Powers of the local authority
  • Meaning of 'dangerous building or structure'
  • Building Act 1984, s 77—court order
  • Penalties for non-compliance
  • Building Act 1984, s 78—emergency measures
  • Notice
  • Costs
  • Compensation
  • Difference between ss 77 and 78
  • More...

Dangerous buildings and structures

Powers of the local authority

The local authority has powers to deal with dangerous buildings under a number of statutes:

  1. section 77 of the Building Act 1984 (BA 1984)—court order

  2. BA 1984, s 78—emergency measures

  3. BA 1984, s 76—defective premises

  4. BA 1984, s 79—ruinous and dilapidated buildings and neglected sites

  5. Environmental Protection Act 1990, s 80—statutory nuisance

  6. sections 21 and 22 of the Health and Safety at Work etc Act 1974 (HSWA 1974)—improvement and prohibition notice

Meaning of 'dangerous building or structure'

The term 'dangerous structure' covers any building, part of a building or other structure, where it poses a serious danger to the public. Examples of ways that the building or structure could be dangerous include loose slates/tiles, vehicle damage/collapsing walls, loose chimneys, leaning garden walls, broken hoarding, etc.

Buildings or structures can become dangerous as a result of poor maintenance, fire, storm, vehicle impact or explosion. The term does not cover buildings which are simply dilapidated or run down (for example due to falling trees), holes in or uneven roads/footpaths and loose manhole covers etc.

Building Act 1984, s 77—court order

Under BA 1984, s 77(1), if it appears to a local authority that a building or structure, or part of a building or structure, is in such a condition, or is used to carry such loads, as to be dangerous, the authority may

apply to a magistrates' court. The court may:

  1. where danger arises from the condition of the building or structure—make an order requiring the owner to:

    1. execute such work as may be necessary to obviate the danger, or

    2. demolish the building or structure, or any dangerous part of it, and remove any rubbish resulting from the demolition

  2. where danger arises from overloading of the building or structure—make an order restricting its use until the court withdraws or modifies the restriction, on the basis that it is satisfied that any necessary works have been executed

Penalties for non-compliance

If the person served with the order fails to comply with it within the time specified, the local authority may:

  1. execute the order in such manner as it thinks fit, and

  2. recover the expenses reasonably incurred by it in doing so from the person in default

In addition, the person is liable on summary conviction to a fine not exceeding level 1 on the standard scale.

Building Act 1984, s 78—emergency measures

If it appears to a local authority that:

  1. any part of a building or structure is in such a state, or is used to carry such loads, as to be dangerous, and

  2. immediate action should be taken to remove the danger

it may take any necessary steps for that purpose.

Notice

Before exercising its powers the local authority should, if it is reasonably practicable to do so, give notice of its intention to the owner and occupier of the building, or of the premises on which the structure is situated.

Costs

The local authority can recover reasonably incurred expenses from the owner.

Expenses relating to the fencing off the building or structure, or arranging for it to be monitored, are not recoverable after:

  1. the danger has been removed by other steps under the s 78 power

  2. an order made under s 77 (above) has been complied with or has been executed by the local authority following non-compliance

The court has discretion to:

  1. decide not to award expenses under s 78 if it considers that the local authority could have used the powers under s 77(1) instead

  2. consider whether any part of the expenses should be borne by another person (in which case that person must be given notice of the proceedings and an opportunity to be heard), and

  3. make such order concerning the expenses or their apportionment as appears to the court to be just

Compensation

Owners or occupiers have a right to claim full compensation for any damages incurred as a result of the local authority’s actions, providing that the owner or occupier has not been in default of any obligations under BA 1984.  It is irrelevant to the claim for compensation whether the local authority was justified in the use of its powers under BA 1984.

The case of Manolete is a good example of how the BA 1984, s 106 works in practice. The local authority exercised its emergency powers under BA 1984, s 78 and closed a pier which was severely dilapidated. In the meantime, the authority applied for an order under s 77 requiring the owner to make the necessary repairs. A tenant, Stylus Sports, claimed compensation under s 106 in respect of the loss from closure of its business. The Supreme Court held that the authority was liable in principle to pay compensation under BA 1984, s 106 for loss to a company’s business caused by it exercising its emergency powers under BA 1984, s 78 to close parts of a pier that were in a dangerous condition. The court found that the company whose business had been affected by the closure had not been in default as to the matter which led to the local authority’s use of the statutory power and was therefore entitled to compensation. However, it also held that, contrary to the reasoning of the lower courts in these proceedings, ‘in default’ did not just refer to breaches of obligations arising under BA 1984 itself. It emphasised that, on the assessment of compensation, the company’s statutory and common law responsibilities and the implications for its business arising from the condition of the structure were not to be left out of account and could result in compensation being substantially reduced.

The decision means that local authorities will only be able to prevent a person from having an entitlement in principle to compensation under BA 1984, s 106 when that person’s breach of obligations leads directly to the exercise of the statutory power. However, breach of any legal obligations leading to such exercise will be sufficient, not just breaches of obligations arising under BA 1984 itself. If an entitlement to claim compensation arises in principle, compensation will be capable of being substantially reduced (potentially to nil) having regard to the state of the structure and the claimant’s duties at common law or under other legislation, such as the Occupiers’ Liability Act 1957 or the HSWA 1974.

The case also provides a warning to local authorities dealing with dangerous premises or structures to think carefully about the approach they take. Local authorities should:

  1. be proactive and take early action

  2. make an application to court under s 77 as soon as possible, before it becomes necessary to take immediate action under s 78. Any action taken following an order under s 77 will not result in the authority having to compensate an owner or occupier, which it might under s 78

  3. only exercise its powers under s 78 in circumstances when it has no choice but to take immediate action to remove the danger and such action cannot await a decision under s 77

See News Analysis: Examining the legal definition of ‘in default’.

Difference between ss 77 and 78

The difference between BA 1984, ss 77 and 78 is that BA 1984, s 77 allows for determination by the courts, whereas BA 1984, s 78 may be exercised by a local authority without notice and those affected have no right to object.

As set out above, the s 78 procedure restricts the circumstances within which a local authority may obtain payment of its expenses and the local authority is at risk of having to make payment of compensation to those innocent parties affected (see below). In light of Manolete, local authorities are advised to use BA 1984, s 77 rather than BA 1984, s 78 where possible.

Environmental Protection Act 1990, s 80—statutory nuisance

Section 80 of the Environmental Protection Act 1990 (EPA 1990) gives a local authority the right to serve an abatement notice for a nuisance caused by a structural defect on the owner of the defective premises or structure. The owner commits a criminal offence if they do not appeal to the court within 21 days and fail to abate the nuisance. There is no requirement to compensate parties affected.

Building Act 1984, s 79—ruinous and dilapidated buildings and neglected sites

BA 1984, s 79 empowers a local authority to require the owner of a building or structure that, by reason of its ruinous or dilapidated condition, is seriously detrimental to the amenities of the neighbourhood, to execute such works of repair or restoration, or if the owner so elects, to take such steps for demolishing the building or structure or any part thereof, as may be necessary in the interests of amenity.

BA 1984, s 79 requires the local authority to serve a notice on the owner requiring the owner to execute such works of repair or restoration as may be necessary in the interests of amenity or, if the owner chooses, to take such steps for demolishing the building or structure, or any part thereof, and removing any rubbish resulting from the demolition as may be necessary in the interests of amenity.

As to what is necessary in the interests of amenity, planning appeals such as Angelic Interiors Ltd v Tower Hamlets LBC [2019] JPL 420 (not reported by LexisNexis®) and the Carlton Tavern case APP/X5990/C/15/3130605 (not reported on LexisNexis®) are examples of the balancing exercise which must be carried out, applying the principles in the National Planning Policy Framework (for example, at paras [195] and [196] that apply to conservation areas as designated heritage sites).

A notice under

 
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