ANNEX B. SUMMARY OF REPRESENTATIONS AND SECRETARY OF STATE’S FINDINGS

Planning (Listed Buildings and Conservation Areas) Act 1990

Sections 54 & 55

Sproughton Mill, Sproughton, Ipswich, Suffolk IP4 8AA

1. I am directed to write about the exercise of the Secretary of State's power under section 55(4) of the Planning (Listed Buildings and Conservation Areas) Act 1990 ("the Act"). Urgent works were executed to Sproughton Mill ("the Mill") and a claim for the monies spent made against Mrs. Descorps by Babergh District Council ("the Council"). Mr. Jones mad representations as to why the monies claimed should not be paid and these have been considered by the Secretary of State. This letter gives the Secretary of State's decision as to the extent to which she thinks those representations are justified. (N.B. all page references are to pages in the bundle of documents marked Annex A. These documents will be sent under separate cover.)

Chronology/Background

2. Sproughton Mill was listed as a grade 2 listed building in January 1988 and was placed on the Suffolk Historic Buildings at Risk register in 1992. It was purchased by Josephine Descorps in August 1995. On 13 Nov 1995 a s54 notice (pp 868-870) was served specifying certain works that the Council considered to be urgently necessary for the preservation of the Mill On 20 May 1996 that notice was withdrawn by letter (p785) and on 21 May 1996 a notice under s78 of the Building Act 1984 was served by the Council (pp871 - 872 Annex A). In addition, on 22 May 1996 a Notice under s54 was served specifying works that were urgently required for the preservation of the Mill (pp 873 - 874). In essence the works involved taking down the brickwork in one corner of the building, from the roof to the ground, putting a new piled foundation under that corner and rebuilding the wall These works were started by the Council on or about 30 May 1996 and completed on or about 20 September 1996.

3. Around the end of November 1996 further movement was reported at the Mill On 12 June 1997 the Council served a further notice under s54 (3) stating that works to afford temporary support to the Mill were urgently required. The effect of this Notice was that the scaffolding which had been placed around the building on the completion of the earlier works was to be left in situ indefinitely. On 24 August 1999 the Council served notice under s55 That it required payment of the expenses in connection with the s54 notice served on 22 May 1996. On 25 August 1999 the Council served a second notice under s55 stating that it required payment of the expenses in connection with the s54 notice served on 12 June 1997.

4. On 18 September 1999 Mr. Jones made representations to the Secretary of State that the sums claimed in both notices should not be paid.

Preliminary Points

5. A number of issues have been raised in the representations made in this case which are not relevant to the Secretary of State's decision. The Secretary of State's powers extend only to determining whether representations made on the following matters are justified:

1. Whether some or all of the work was necessary for the preservation of the building

2. Whether works for affording temporary support were reasonable or whether they were continued for an unreasonable length of time

3. Whether the amount claimed in the notice was reasonable

4. Whether payment of the sum will cause hardship

6. Where representations have been made on other matters, this letter briefly explains that they cannot be taken into account. A full summary of all the representations (both relevant and irrelevant) is set out in the attached "Summary of Representations and Comments" at Annex B.

7. Mr. Jones has made a number of representations about the standard of works carried out by the Council, however the Secretary of State does not consider that Mr. Jones's allegations about the quality of the workmanship are relevant to her decision in this case and these representations have not been taken into account. In any event, the Secretary of State instructed her own surveyor who concluded that the standard of workmanship was reasonable (see also paragraphs 43 and 66).

8. The Council has raised the question of the ownership of the Mill Mr. Jones has stated that he has a proprietorial interest in the Mill but the extent of this ownership has never been fully explained. There is no question that Josephine Descorps is the legal owner of the Mill The Secretary of State has found that it is not necessary for her to form a view on the exact nature of Mr. Jones's ownership of the Mill for the reasons set out in paragraph 9 below.

9. In a previous decision, see letter dated 31 July 2002 (pp 634 - 636 Annex A) the Secretary of State found that it was proper for her to consider representations made by Mr. Jones. This is because although the nature and extent of his own interest in the Mill is unclear, he is obviously the person with control of the Mill and he has always been the only person making representations to the Council about the Mill either on his behalf or on behalf of Mrs. Descorps (the legal owner). The Secretary of State considers that it would be unfair to refuse to hear his representations, either as owner or as the owner's representative, when as a matter of fact, there is no one else who can make representations about the works done to the Mill and the Council have consistently dealt with Mr. Jones as the owner's representative.

10. A number of representations have been made by both parties about the veracity of the evidence put forward by the other party. In particular, Mr. Jones has made allegations of wrongdoing against a number of individuals working on behalf of the Council in this case. However, all the actions taken by council officers and their consultants at the Mill were carried out in pursuance of the Council's statutory duties in relation to the preservation of unoccupied listed buildings. The Secretary of State has seen no evidence to support the allegations made by Mr. Jones and has taken no account of them in her determination.

11. Beyond this, the Secretary of State considers that she is able to make her determination without needing to make any finding about the veracity of any individual's evidence. No further reference is made to these matters in this letter except where they have been mentioned by the parties because there is a conflict over evidence on issues, which are relevant to the determination. In these cases the Secretary of State will set out the evidence which she has considered and, where appropriate, explain which evidence she has relied on and why.

12. There are a number of different notices referred to in this decision letter. The Secretary of State will refer to each of them as follows:

 The section 54 urgent works notice served on 13 October 1995 "The October 1995s54 Notice"

 The section 78 Building Act 1984 notice served on 21 May 1996 "The 78 Notice"

The section 54 urgent works notice served on 22 May 1996 "The May 1996 s54 Notice"

The section 54 urgent works notice served on 12 June 1997 "The June 1996 s54 Notice"

 The section 55 notice served on 24 August 1999 relating to the works carried out under the May 1996 s54 Notice "The First s55 Notice"

 The section 55 notice served on 22 August 1999 relating to the June 1997 s54 Notice "The Second s55 Notice"

Validity and Service of the Notices

Representation: That the s54 and s55 notices are defective in form and therefore invalid:

13. There is no prescribed form for s54 or s55 notices and the Secretary of State is satisfied that they included sufficient information to explain to the recipient what work was required to be carried out under the s54 notices, and how much was being claimed and what the amounts were for in the s55 notices.

14. Mr. Jones also states that the fact that the May 1996 s54 Notice specified that work should be carried out to the north west gable, when there is no such gable, caused him considerable confusion and should invalidate the Notice and the claim made under the First s55 Notice.

15. The Council accept that a mistake was made but argue that Mr. Jones knew which corner was referred to and was not prejudiced by the mistake.

16. The Secretary of State notes the error in the May 1996 s54 Notice. However, she also notes that Mr. Jones was present at the site visit on 15 May 1996 when the movement of the corner in question was discussed with Mr. Morton and Mr. Ward, representatives of the Council She also notes that he was in regular telephone contact with Mr. Ward and any confusion could have been easily resolved with a telephone call. In all the circumstances, she is satisfied that he was aware of the work that was required to be carried out.

17. The Secretary of State finds that the description of the relevant corner as the "north west" corner rather than the more accurate "western elevation of the north corner" in the May 1996 s54 Notice did not cause prejudice to Mr. Jones and does not invalidate that notice or the First s55 Notice.

Service

18. There has also been an issue in this case about whether the s55 notices were served on Mr. Jones in his name, or whether only on Mrs. Descorps. The Council has sent an affidavit from the solicitor handling the case at the time in which she states that no notices were served on Mr. Jones. Mr. Jones, however, has produced photocopies of notices addressed to him personally.

19. In the decision letter dated 31 July 2002 (pp 634-636 Annex A) the Secretary of State found that Mr. Jones was, as a matter of fact, the owner's representative either because he was acting on behalf of Mrs. Descorps or because he purchased the Mill himself in the name of Mr. Descorps. The Secretary of State made no finding about whether Mr. Jones was served with letters addressed to him, as he claimed, but which was denied by the Council Having considered the matter, the Secretary of State finds that if Mr. Jones is an owner by virtue of the fact that he purchased the Mill in the name of Mrs. Descorps, then he was in any event served with the s55 notices which were addressed to Mrs. Descorps. The Secretary of State is satisfied that he was served, particularly having regard to the method of service, which was to pin the notices to the Mill If Mr. Jones is not an owner of the Mill, but merely Mrs. Descorps' representative, then the point is immaterial as Mrs. Descorps has been served. First Section 55 Notice (dated 24 August 1999) relating to work carried out under May 1996 s54 Notice (dated 22 May 1996) Ground 1: Some or All of the Works Were Unnecessary for the Preservation of the Building

20. The Council served both a s78 notice and a s54 notice on 21 May 1996 and 22 May 1996 respectively. These notices are set out at pages 871 - 874.

21. The Secretary of State has no jurisdiction to review the s78 notice. The need for this work has already been determined through County Court proceedings. However, since the s78 and s54 works were carried out at the same time, she has found it necessary to review some of the evidence relating to the s78 works in order to obtain a full picture of the condition of the Mill

Evidence of Condition of the Mill

22. The following evidence has been put forward about the condition of the Mill in the period leading up to the service of the May 1996 s54 notice.

a) Richard Ward (the Council's Conservation and Design officer) visited the Mill towards the end of April 1996. He noted that a major crack at ground level on the gable end and rear return nearest the River Gipping appeared to have widened and worsened. The brickwork below the crack also appeared to have moved. He contacted Brian Morton, a structural engineer, in order to obtain his expert advice. They met Mr Jones at the Mill on 15 May 1996. On that date, Mr. Ward had the same observations in relation to the movement and cracking of the Mill which he drew to the attention of Mr. Jones and Mr. Morton.

b) Brian Morton (The Morton Partnership) - a consultant structural engineer - visited the site on 15 May at the request of Mr. Ward. Mr. Morton was familiar with the Mill He had also previously advised the Council on what urgent works were necessary to preserve the Mill which had led to the November 1995 s54 Notice. After visiting the above site he wrote to the Council on 17 May in the following terms (p411): .”Following my visit with you and Mr. Jones, to the Mill, I have had further thoughts about the corner of the building which is in a state of collapse.”

I indicated to Mr Jones that in my opinion it would probably be cheaper now to re-build the corner on a new piled foundation rather than wasting money on temporary works. Having thought about the situation and looked at my photographs, it seems to me that Mr Jones now has no alternative but to recommend to the owner that the corner is re-built to avoid its collapse. The temporary works previously envisaged under the Emergency Works Notice wilt now be difficult to carry out because of the further movement that has occurred to the brickwork. I am fearful that unless urgent action is taken, this particular corner of the building will collapse taking with it part of the floor and part of the roof. I am satisfied that your Emergency Works Notice should now include the initial propping and then the careful re-building of the failed comer on a piled foundation. The temporary work tying the building across will still be necessary to maintain the building's overall structural integrity until permanent works are carried out to the other corners of the building." On 21 May 1996 (p415) Mr Morton wrote to the Council to confirm the view he had given about the condition of the Mill In that letter he wrote:

"I confirm that the brickwork that had previously cracked away from the main structure has moved substantially in recent weeks. There is a very real danger of the collapse of that brickwork.

I am of the opinion that if that brickwork collapses some of the brickwork of the first bay on the west side will collapse as will some of the north wall.

It is my opinion that the result of this will be that the roof and floors will sag towards that corner of the building but the overall structure will remain standing. I base this view on the fact that there are the stiff longitudinal walls and the gable wall which within themselves are quite stiff and are not indicating any signs of structural movement in recent times.

Your chief executive has asked if there are any guarantees that the building will not totally collapse and of course I cannot give a guarantee, only an engineering opinion which is based upon a considerable experience of working on historic buildings that are in a poor state and of doubtful stability.

It is not correct to say the building is in a state of collapse, it is only a section of the building falling away from the main structure which will retain its integrity. I would recommend that immediately external shores are provided in the north west corner of the building on both elevations to restrain the corner."

c) Martin Price (the Council's East Area Development Control Officer) visited the Mill with Mr Ward at the end of April but he has not put forward any independent evidence giving his observations about the condition of the Mill on that date. For the avoidance of doubt, however, the Secretary of State confirms that she considers that Mr Jones's suggestion that Mr Price's memorandum dated 2 March 1999 (pp778 -781) proves he did not visit the Mill with Mr Ward, is misconceived. In this memorandum Mr Price merely comments that he has not dealt with the urgent works notices in his statement because he had no particular involvement and he expected Richard Ward to deal with them in his own statement. There is nothing in this comment that implies that Mr Price did not visit the Mill with Mr Ward and observe its condition.

d) Peter Durrant (the Council's Chief Building Control Officer - a corporate surveyor) visited the site on 17 and 20 May 1996. He gave evidence in the s78 court proceedings (pp823-870 Annex A) that at the time of his first visit (17/05) he considered the building to represent a danger to the adjoining owner and users of the river. He considered that the condition of the structure was such that it required some form of support to prevent any collapse. He thought that if one wall collapsed the chances were that the opposite wall to which it was tied would also suffer. He considered that something should be done immediately. His opinion was formed primarily from his observations on site.

e) Mr Jones: Mr Jones's position has not been unequivocally stated in the evidence that he has put forward. However, from the various documents provided for the Secretary of State, his principal representation appears to be that there had been no recent movement in the Mill and so it cannot have been on the point of collapse. He explains that approximately 10 months before the site meeting on 8 September 1995, he had placed monitoring studs or "tell-tales" on the building to monitor any movement. These tell-tales did not show any movement at all in that period. He explained that there would be no wet/dry seasonal variation because the whole the period was wet (autumn to spring). In his opinion the Mill was in no worse a state than it had been in October 1994 and, since there had been no significant movement, there had been no deterioration in the building and therefore there was no need for urgent works.

f) Stuart Allen (of Richard Jackson Partnership - a specialist in structural defects) prepared a report on the Mill for the s78 proceedings at the request of Mr Jones. He examined photographs dated 13 October 1994 and 15 May 1996 using magnifying crack monitors with graduated scales. He calculated the crack widths, taking into account the different scale and size of the photographs. Using this method he assessed that the cracks in 1994 were between 29 and 33 mm and in 1996 were between 30 and 32 mm. His report concluded that there was little or no evidence of movement between these two periods. A comparison of other features of the building, shown in the photographs, supported this conclusion. In his addendum report dated August 1999 (p295) he also states that:

"in our opinion the rate of subsidence is significantly lower now that the building is disused. It is therefore unlikely that rapid movement would take place without a separate external influence....From the evidence of the photographs there was no significant movement taking place between 1994 and 1996. It is therefore our opinion that the building was not in danger of imminent collapse and that the restraint ties that existed throughout the building were adequate to restrain the corner in question against excessive movements. The brickwork below the lower restraining strap at the north corner had fully cracked away from the building in 1994 and was not providing any vertical or lateral support to the brickwork above it at this time. This was still the situation in 1996, approximately 19 months later."

Parties' Comments on the Evidence

23. Mr Jones does not accept that Mr Ward or Mr Morton had any objective evidence of recent movement at the Mill He states that they had no "factual evidence" such as photographs or measurements to show the substantial movement. He does not, however, comment on the evidence of Mr Durrant.

24. The Council says that Mr Jones's monitoring records cannot be relied on because they show no evidence of movement at all which is very unusual because at the very least, some minor seasonal changes would be evident. They suggest that Mr Alien's evidence should not be given weight because it was based on photographs, and they question whether the photographs he examined were actually taken on the dates stated.

25. Mr Jones's position is that if the Secretary of State accepts his evidence that the building was in no worse a state in May 1996 than it had been in October 1994 there was no need for urgent works. The Secretary of State acknowledges that evidence about the state of the building in previous months, and the question of whether there had been any deterioration, may be relevant to the question of whether the works were "urgently" necessary at the time they were carried out. However she considers that the principal relevant factor has to be the objective state of the building at the time the s54 notice was served. Secretary of State's Consideration of the Evidence and Arguments

26. The Secretary of State sees no reason to doubt the evidence of the Council Officers, Mr Ward and Mr Durrant about the state of the Mill much of which was given under oath in the s78 proceedings. A large part of Mr Durrant's job was to assess whether buildings were in a dangerous condition. In his professional opinion, on the date of his first visit on 17 May 1996, immediate action was required as there was a risk of one wall collapsing. Furthermore, she sees no reason to doubt the evidence of Mr Morton, an experienced structural engineer. All of this eyewitness evidence is supported by the contemporaneous photographs and the video taken by the Council in which very large cracks are apparent to the corner of the Mill

27. The Secretary of State also finds it persuasive that Mr Durrant stated in his evidence to the court in the s78 proceedings that he had never seen monitoring readings before which did not show some seasonal movement. She notes that Mr Alien based his evidence about movement only on a comparison of photographs, which were not prepared for the purpose of measuring cracks, and that he did not have the benefit of seeing the property before the remedial works were carried out.

28. The Council has outlined the works undertaken under s78 in its letter dated 7 November 2002 (pp652 - 654). The work comprised the erection of wooden raking shores to support the gable end of the building. The Council describes this as work to make the building safe as a precursor to the s54 works in the 22 May 1996 Notice. Mr Jones has also made representations that the s54 works cannot have been necessary because the works under s78 were completed.

29. Works under s78 are undertaken when it appears to a local authority that immediate action should be taken to remove a danger presented by a building or structure. The duty under s54 extends not just to making a building safe, but to works that are necessary to preserve it. This is a different test and it is possible that more works may be necessary in order to preserve a building than are necessary to remove a danger, in accordance with the requirements of s78 of the Building Act 1984.

Conclusion

30. Taking all the above evidence into account the Secretary of State is satisfied that by 22 May 1996, the date of service of the May 1996 s54 Notice, the Mill was in a state that might lead to the imminent collapse of one of the corners. In such circumstances it was reasonable for the Council to think that works were urgently necessary to preserve the Mill The Secretary of State, therefore, finds that the works carried out were necessary, and, indeed, is of the view that the works were urgently necessary.

31. Whilst the question of whether the works carried out were the minimum necessary to preserve the building or prevent further deterioration (in accordance with the policy set out in PPG15) is relevant to the question of whether the works were necessary, in this particular case the point is considered below under the question of whether the amount claimed by the Council is reasonable.

Ground 2: Were Works for Temporary Support Continued for Unreasonable Period

32. Not relevant

Ground 3: Amount Claimed Unreasonable

33. In determining this question the Secretary of State takes into account the guidance set out in PPG15 (pp924-928) that works should be the minimum necessary to preserve the building or prevent further deterioration. She is also mindful of the guidance which states that local authorities must consider the owner's financial circumstances before carrying out any such work. Whilst her jurisdiction does not extend to reviewing whether the Council's decision to carry out particular works under their s54 notices was reasonable in itself, she does have power to consider whether the sums claimed are reasonable and part of this determination necessarily involves considering whether the Council could have carried out a less costly scheme to preserve the Mill or prevent further deterioration.

Mr Jones's Representation

34. Mr Jones contends that the works were more than the minimum necessary to preserve the building, as the works could have consisted of temporary propping shores which would have achieved the same end. This is supported by the evidence of Stuart Alien in his addendum report of August 1999 (pp296-297)

35. In para 2.17 he states:

"Whilst negotiations regarding the planning permission and listed building consent were undertaken at the time we would have expected localized temporary shorings only be added to the north corner to ensure its short term integrity until the final remedial works could be carried out. As planning permission was eventually received on 2nd September 1996 we would have expected this temporary situation to be acceptable until early 1997 which would have allowed time for the owners to attend to the remedial works approved under the planning permission. Given the rate of deterioration recorded by the photographs and the addition of external racking shores around this north corner we can see no reason for more extensive works to be carried out during this interim period"

in paragraph 4.1 he states that:

"We have not seen any evidence of site investigations to establish whether piling was the most economic solution for this property, ...The more cost effective and sympathetic solution for the remainder of the building structure would be to use foundations that are similar depth to the main building. The brickwork arches that form the water channels under the building, that originally drove the mill wheels, would have deeper foundations and matching this depth of foundation would avoid any differential movement in the future."

36. Mr Jones's evidence also includes a report from chartered architects Blee Ettwein Bridges (pp 563 - 579) dated January 2000. However, this Report was prepared to deal with the quality of the workmanship of the works carried out by the Council (which are not relevant to this determination) and specifically states that it makes no judgment on whether or not the s54 and s78 notices should have been served (para 2.3 of report p570).

37. Mr Jones has not put forward evidence of the cost of the alternative work which his experts have suggested would have been more appropriate and cheaper.

The Council's Representations

38. The Council has stated that they decided to rebuild the gable end rather than temporary propping, because underpinning had to take place and the wall had to be rebuilt in any event, and the wasted costs of the works of temporary support could be avoided. They rely on the advice given to them by Brian Morton in his letter dated 17 May 1996 (see extract above at paragraph 22.b). This superseded the advice he gave about what works were necessary to preserve the Mill for the November 1995 s54 Notice. Mr Morton further comments in his report for this determination (para 1 p717):

"The works required at the time of serving the original Notice [November 1995 s54 Notice] were comparatively nominal. By the time the second notice a significant deterioration had occurred and a means of properly restraining the gable wall needed to be devised. A temporary system of shoring was thought not to be adequate and practical related to site conditions and the most economic solution at that time and for the future meant rebuilding as carried out."

And in his comments about Blee Ettwein Bridges report (p727):

"The assessment at the end of the Report refers to the minimum works necessary, and I can only state that in my opinion, the building was in sufficient danger for collapse to be likely. It would have been extremely difficult and expensive to be absolutely certain of retaining the existing structure in a state of reasonable equilibrium and thus to keep overall costs to a minimum, permanent works were carried out rather than wasting money on temporary works."

In response to Stuart Allen's report Mr Morton states (paras 5.4,5.5, 5.7 pp 735 -736):

"In paragraph 5.5 [of his May 1999 Report] Richard Jackson's Engineer makes an assumption that is incorrect. If the internal strapping had been implemented at the time of the original Notice there would probably not have been any need for the Section 78 Notice. Under Section 54 the minimum works are required and I was of the opinion that the internal diagonal strapping was exactly that."

Referring to paragraph 5.6 there is no practical evidence that Mr Jones was co-operating in any way in carrying out repair works to the Mill, and in my opinion, he was endeavoring to by default allow collapses to occur prior to making a further application for demolition.

"Paragraph 2.3 of the [RJ] Addendum Report refers to the use of external raking shores. The professional team had seriously considered the use of raking shores but were of the opinion that these would be difficult and expensive to install based on the ground conditions and it would be more cost effective for the client to actually carry out permanent works rather than spending money which would be a direct loss"

Secretary of State's Consideration of the Evidence and Arguments

39. The representations that the Council carried out more work than was necessary (and by implication that the cost is unreasonable) distil into two principal points:

a) That the work should have been limited to external propping

b) That a less expensive option than piling would have been to use foundations that were a similar depth to the original building.

40. Of the experts who have commented on the extent of the work carried out, Mr Morton was the only one who had actual experience of the condition of the Mill The experts relied on by Mr Jones did not see the Mill before the remedial works were carried out. In addition, the comments in Mr Allen's report are based on an assumption that the Mill was not close to collapse. The Secretary of State has already accepted that the Mill was at risk of collapse by May 1996.

41. The Blee Ettwein Bridges report "Assessment" section does refer to the policy that works should be restricted to the minimum necessary required to preserve the listed building from collapse. However it does not draw a conclusion about whether the works in this case were the minimum necessary, and this was not one of the issues the report was commissioned to consider. In addition, the report itself acknowledges that "a local planning authority contemplating carrying out Urgent Works under s54 of the 1990 Act faces a dilemma about the extent of such works" (para 9.1 of Report p576).

42. The Secretary of State has considered very carefully Mr Morton's comments. In particular, she notes the fact that the professional team did consider the use of raking shores but were of the opinion that they would be difficult and expensive to install based on the ground conditions. She also notes that in his opinion "it would have been extremely difficult and expensive to be absolutely certain of retaining the existing structure in a state of reasonable equilibrium." Mr Morton has considerable, relevant expertise and experience in his field and the Secretary of State considers that it was reasonable for the Council to accept his judgment and follow his advice that rebuilding the northern wall and inserting piled foundations under that gable were necessary to preserve the Mill

43. The Secretary of State has also received advice from an independent surveyor. His opinion was that the amount of works specified in the s54 notices was not unreasonable (p907).

44. In his representations Mr Jones also refers to the House of Lords case of Robbins -v- Secretary of State for the Environment 1989 (pp907 -923). He quotes a passage from that case in which Lord Bridge refers to works urgently necessary for the preservation of a listed building under what was then s101 of the Town and Country Planning Act 1971 but which is now s54 of the Planning (Listed Buildings and Conservation Areas) Act 1990. Lord Bridge states that "it is clear that works can only be urgently necessary for the preservation of a listed building if they are necessary for the preservation of the building as it subsists when the works are carried out. "This comment was made in the context of comparing the urgent works provision with the repairs notice and compulsory purchase provisions. The issue for determination was whether the building should be restored to the state it was in when first listed or on the date a repairs notice (under s48) was served. Robbins confirms that for s54 urgent works, it is the state of the building at the time the urgent works notice is served that is relevant i.e. that work to restore a building to the state it was in when first listed is not appropriate under a s54 urgent work notice. The rest of the passage quoted in Mr Jones's representations does not appear in Robbins.

45. The Secretary of State has already found that the Mill was in such a state that one wall was at risk of collapse by May 1996. The work carried out by the Council could not be categorized as restoration as it was merely directed to stabilizing the Mill in order to ensure its continued existence. The Secretary of State therefore considers that the work carried out by the Council was within the limits of s54 work permitted by Robbins.

Conclusion

46. PPG15 sets out the policy that a Council undertaking urgent works under s54 should carry out the minimum necessary work. However it is bound to be a difficult matter for a Council to judge what works are the minimum necessary. Taking into account the circumstances surrounding the execution of the works and in particular the uncertainty over how long temporary repairs/support might be required before final renovation work began, the expensive nature of the temporary repairs that would be necessary, and the fact that they might not sufficiently stabilize the Mill in any case, the Secretary of State finds that it was reasonable for the Council to rebuild the wall and to strengthen the gable end with piling. In all the circumstances she accepts that these were the minimum required to ensure the preservation of the Mill

47. The actual figures for the work carried out by the contractors have not been challenged by Mr Jones.

48. The Secretary of State's independent surveyor has suggested that the consultant's fees at 15% of the overall cost were rather high. English Heritage would normally expect consultant's fees to be 10% of the total cost. In response, Mr Morton has stated that the fees included both his fees and those of a quantity surveyor. Both fees are within a normal scale of charges expected on a contract of this nature. He states that the overall fee was reasonable considering the urgent nature and complexities of this particular case.

49. Having reviewed all the evidence the Secretary of State accepts that this case was particularly complicated and justifies a higher fee than might otherwise be allowed.

50. The Secretary of State finds that representations that the costs were unreasonable because the work was more than the minimum necessary are not justified. She therefore finds that the sum of £56,046.70, claimed by the Council is reasonable.

Ground 4: Hardship

51. Mr Jones has made representations that paying the sum claimed would cause hardship.

52. The Secretary of State does not have enough evidence to know whether Mr Jones is an owner of the Mill  She is unable to make a finding on this point. Her determination, therefore, must be in the alternative.

53. If Mrs Descorps is the owner of the Mill then no evidence at all of her financial circumstances has been provided, and no details of what hardship would be caused if she were required to pay. The Secretary of State therefore concludes that if the representations made by Mr Jones are made on behalf of Mrs Descorps then in the absence of any evidence in relation to her circumstances this ground has not been made out.

54. If Mr Jones is the owner of the Mill he has not provided evidence of his financial circumstances or what hardship would be caused if he were required to pay either. The Secretary of State is aware that Mr Jones has been made bankrupt, but without further information cannot decide whether any particular hardship would be caused if the determination was made in the Council's favor. She therefore finds that the representations on these grounds are not justified.

55. Therefore the full sum of £56,046.70 can be claimed by the Council

Other Representations

Piling

56. Not relevant !

Brickwork

57. Not relevant !

Roof

58. Not relevant !

No plans/architectural drawings

59. Not relevant !

No listed building consent

60. Not relevant !

Second s55 Notice (dated 25 August 1999) for work carried out under June 1997 s54 Notice (dated 12 June 1997)

Ground 1: Some or All of the Works Were Unnecessary for the Preservation of the Building

61. The Council state (pp694-695) that once the works under the May 1996 s54 Notice were completed the scaffolding was retained to allow the gable end to re-establish itself, the mortar to set and the new part of the structure to settle. The initial costs of this are included in the May 1996 s54 Notice. Before the scaffolding was removed, the owner of the neighboring property reported his concerns about widening of cracks in part of the Mill In November 1996 (p800 of Annex 1) and again in May 1997 (p526) Mr Morton recommended that the scaffolding strapping the gable ends be left in situ to offer support to this part of the building on the basis that the scaffolding could be removed when the owner started his full repair/conversion work. Mr Morton advised that the widening of the crack was part of the gradual deterioration or movement in the building.

62. Mr Jones has not challenged the necessity for strapping the building. His representations are to the effect that it was the Council's piling works that caused a further destabilization of the structure and led to the need for the strapping.

63. The Secretary of State is therefore satisfied that works to afford temporary support to the Mill were necessary.

Ground 2: Were Works for Temporary Support Continued for Unreasonable Period

64. Mr Morton's advice to the Council was that the strapping would be necessary until the program of full repairs and/or conversion is implemented. Mr Jones has not put forward any evidence to challenge this view.

Ground 3: Amount Claimed Unreasonable

65. Mr Jones has claimed that the piling works caused the cracks which has led to the need for strapping the building.

66. To the extent that this issue is relevant to the matters the Secretary of State has to determine, the Secretary of State considers that the case is not made out.

67. This claim is mentioned in Stuart Allen's Addendum Report of August 1999 (para 4.1 p297):

"I would also have great concern over piling utilizing driven piles in a building that has suffered the damage recorded in the photographs. The vibration caused by driving piles in close proximately to this building is likely to increase the crack widths as consolidation of the subsoil below the foundations would be accelerated by the vibration."

68. However, this is a generalized concern and does not refer to any specific cracks or other physical evidence. Mr Jones has only made assertions about the causes of the cracks. No investigation of the causes of these cracks has been put forward so there is no evidence to substantiate his claim. The Council states in its evidence that Mr Morton has advised them that that the widening cracks that are appearing are part of the gradual deterioration or movement in the building and is not associated with the Council's remedial works (para 26.1 p695).

69. In the absence of evidence about the causes of the cracks, the Secretary of State does not consider that she can find Mr Jones's representations to be justified.

70. The Council purchased the scaffolding rather than continuing to hire it. They took this decision because it seemed likely that the scaffolding would need to be in place for a considerable length of time and purchase would be cheaper than hire.

71. It appears that substantive works to repair the Mill have not been commenced and the scaffolding remains in place. In the circumstances the Secretary of State accepts the evidence that purchase of the scaffolding was cheaper than continuing to hire and that it is reasonable for this sum to be claimed from the owner.

72. Mr Jones has not made any representations about the actual cost of the scaffolding or provided any evidence that there might have been a cheaper alternative source of scaffolding or other support mechanism.

73. In the absence of any evidence with which to compare the cost of the scaffolding the Secretary of State finds that the sum claimed under the Second s55 Notice is reasonable.

Ground 4: Hardship

74. See paragraphs 51 to 54. Therefore the full sum of £7,545.26 can be claimed by the Council

Summary

75. The sum of £56,046.70 was claimed from you under the First s55 notice.

76. The Secretary of State has not found your representations against the sums claimed in that Notice to be justified. She determines that a total of £56,046.70 should be paid to the Council for expenses incurred in relation to the May 1996 s54 Notice.

77. The sum of £7,545.26 was claimed from you under the Second s55 notice.

78. The Secretary of State has not found your representations against the sum claimed in that Notice to be justified. She determines that a total of £7,545.26 should be paid to the Council for expenses incurred in relation to the June 1997 s54 Notice.

A copy of this letter is being sent to Babergh District Council

CLARE PILLMAN

Head of Architecture and Historic Environment Division

Authorized by the Secretary of State to sign on her behalf