Mr Syed Hussain the leaseholder of Spice Masala Restaurant 171 High Street Ongar, Mr Bradley Walker and Mr John Terry Whitbread the persons employed by Mr Hussain to carry out work to the property were each prosecuted for the offence of carrying out works to the Grade II listed building, Spice Masala Indian Restaurant without authorisation from the local planning authority, Epping Forest District Council, contrary to section 7 of the Planning (Listed Buildings and Conservation Areas) Act 1990. This is a strict liability offence subject only to the defence which states:
In proceedings for an offence under this section it shall be a defence to prove the following matters—
a) that works to the building were urgently necessary in the interests of safety or health or for the preservation of the building;
b) that it was not practicable to secure safety or health or, as the case may be, the preservation of the building by works of repair or works for affording temporary support or shelter;
c) that the works carried out were limited to the minimum measures immediately necessary; and
d) that notice in writing justifying in detail the carrying out of the works was given to the local planning authority as soon as reasonably practicable.
All three gentlemen entered ‘not guilty’ pleas to these offences and the matter was listed for trial on 21 February 2019 in Colchester Magistrates Court
THE FACTS
Mr Hussain is the leaseholder of Spice Masala restaurant on a 12-year lease of the building. Mr Walker is a builder. Mr Whitbread is also a builder who works for Mr Walker.
On 10 January 2018 the Council received a complaint that works were being undertaken to the listed building and Council officers attended the restaurant the same day. It was closed an no one was present but extensive works were being undertaken to the front and both sides of the building which affected its character as a listed building. No authorisation had been obtained for these works. The officers posted a note through the letter box asking the owner to contact the Council’s conservation officer and stating that no further works should be carried out.
On 11 January 2018 a call from Mr Hussain. It was explained to him that unauthorised works to a listed building were a criminal offence and that no further works should be carried out.
The officers visited the property again on 12 January by appointment and discovered that, since their visit on 10th January, more works affecting the character of the listed building had been carried out, including in particular the removal of a 19th century window which specifically contributed to the architectural and historic value of the building. Mr Walker and Mr Whitbread were present on site and it was evident that the window, the most recent works, had been carried out by these builders. Mr Hussain was also on site and directing the works carried out by the builders.
In his defence Mr Hussain told the Court that when he had received the note from the Council to stop work at the premises he had informed Mr Walker and Mr Whitbread accordingly. Both Messrs Walker and Whitbread denied that Mr Hussain had told them to stop work. They also stated that Mr Hussain had told them he had permission for the work to be carried out. All the defendants agreed that they knew permission was required and that it had not been obtained. They produced no evidence to show that the work was one to which the exemption against strict liability applied.
The Council’s Senior Conservation Officer informed the court that some of the work carried out would have been approved had a proper application been made prior to the work being commenced. However, the removal of the 19th century window would not have been given approval.
The Magistrates found all three defendants guilty. They stated that Mr Hussain had wilfully flouted planning legislation and he was the sole cause of the work being carried out which was for the betterment of his business. He was fined £1,000 and ordered to pay a contribution towards the prosecution costs of £1,500 and a Victim Surcharge of £100.
They told Messrs Walker and Whitbread that working under instruction was not a defence and they had been negligent and working for gain. The Magistrates stated that it would have been easy to check whether consent for the work had been granted by looking at the Council’s website. Messrs Walker and Whitbread were fined a total of £800 and ordered to pay a contribution towards the Council’s prosecution costs of £1,300 and Victim Surcharge of £80
(Further information: Graeme Oakley ext 4012)