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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bello, R (on the application of) v London Borough Council Of Lewisham [2002] EWCA Civ 1421 (19 September 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1421.html Cite as: [2002] EWCA Civ 1421

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(MR JUSTICE SILBER)

		Royal Courts of Justice Strand London WC2 Thursday, 19th September 2002

Thursday, 19th September 2002

1. LORD JUSTICE SCHIEMANN: Before the court is an application that Mr Bello makes in person for permission to appeal a judgment of Silber J in relation to a notice under section 36 of the Building Act 1984. The case has some history in the sense that what in substance has happened here is a Building Act notice had been served under section 36 of the Act in 1988 and after a certain amount of to-ing and fro-ing between 1988 and 1990 the Council has done nothing between 1990 and 2000. At that point they decided to reactivate the Building Act notice.
2. Mr Bello sought to challenge the reactivation primarily on the ground that the delay was such that it was unlawful for the Council now to reactivate the notice. Meanwhile the extension has been used as a church by those who worship there for a long time. The reasoning behind the Council's reactivation of the Building Act Notice was not primarily a Building Act reason, if I can put it that way, but rather because there had been a number of complaints by neighbours as to the amount of noise made in that extension. Mr Bello submits that this is an irrelevant consideration. He will face a problem because there is an argument against him to the effect that it may be a relevant consideration when it is decided whether or not to activate that notice, just as it might have been held by the Council that, because a useful religious activity was being held in this place, a Building Act contravention was capable of being overlooked. That would have gone the other way.
3. I have looked at the note which was placed before the Council. This states:

"The addition to the building has been erected with complete disregard for almost every regulation specified in the legislation. In particular the building has inadequate fire precautions and no provisions for thermal insulation. The use of this illegal extension currently involves a form of religious gathering. Its location is unsuitable for these activities and numerous complaints have been received from occupants of adjacent properties concerning the high level of noise that are generated. It is Council policy to reduce as far as possible the amount of unreasonable noise suffered by residents. Removing the structure would greatly assist this objective."

4. It is noticeable that the note prepared for the Council points out that they had powers under the Planning Act which they let slip. It was now too late to take action under the planning legislation, however the building control legislation enables action to be taken. At one point it appears from paragraph 4.8 that there was a complaint by Mr Bello to the ombudsman over the Council's inaction, and it was felt that the Council did not have a realistic defence against the allegation, and it was decided to revisit the situation with regard to Building Act enforcement.
5. Silber J, in a very careful judgment, has indicated that the delay here has caused no injustice because during the delaying period Mr Bello's church has had the opportunity of using this building so he has been benefited rather than disbenefited. Mr Bello argues that that may be one way of looking at it, but meanwhile the community have used the place and have got used to it, and there will be a disbenefit to that community now in having to discontinue that use. I am by no means certain that this appeal would succeed, but it does seem to me that it is right that Mr Bello should have a chance to place his argument before the full court essentially on the basis (which is the strongest one as it seems to me) that the motivation of the Council in enforcing the dormant enforcement notice was not a proper one, and that the reference to the Building Act contravention was not the true motivation but was rather a desire to deal with what was perceived as a public nuisance problem and possibly to punish Mr Bello for having complained to the ombudsman.
6. Therefore I propose to give permission for this matter to be argued for half a day before two Lords Justices.
(Application granted; no order for costs).