by Kerryn Woollett, Senior Solicitor
There are a number of rock/brick walls across North West Leicestershire, which are over one hundred years old. These walls may look nice and be part of the area’s history, though due to their age, they are falling into disrepair and have the potential to become dangerous.
When a structure becomes dangerous, the Council may apply, under s.77 of the Building Act 1984, to the Magistrates’ Court for an order requiring the owner to carry out works to remove the danger or, if the owner choses to do so, to demolish the structure. If the works are not carried out, then the Council can carry out the works themselves and recover the costs of doing so from the owner.
However, due to the age of these walls, often time no one knows who the owner is and furthermore, naturally the wall often forms the boundary between private and public land, making it further difficult to identify the owner. What then can and should the Council do?
As mentioned above, s.77 allows the Magistrates’ Court to make an order requiring the owner to carry our certain works or demolish the structure. Therefore, if the owner cannot be identified, an order under s.77 cannot be made. Furthermore, if such an order were to be made and the Council were to carry out the works, the Council would not be able to recover the costs of the works as the owner is unknown, and this would mean the public purse has to cover these costs.
Therefore, what can and should the Council do when a wall with an unknown owner becomes dangerous?
Under s.78 of the Building Act 1984 if a structure is in such a state as to be dangerous such that immediate action is necessary to remove the danger, the Council may take such steps as may be necessary to remove the danger. This then enables the Council to carry out the works without the need to apply to the Court. Though, if the owner is unknown, the Council will not be able to recover the costs of the works and instead, the burden will fall on council tax paying residents. In situations where the wall forms the boundary between public and private land, many might be of the view that it isn’t a good use of public funds to pay to repair a wall which is clearly benefiting a private individual, even if it’s not completely clear that that individual actually owns the wall. Others might be of the view that because the wall forms a boundary between public and private land, there is a clear public benefit in the wall being repaired and consequently the Council should cover the costs of repair. Furthermore, some might also argue that the risk of injury to members of the public should the wall collapse, is a further reason for the Council to undertake the repairs, even if there is no possibility of recovering costs.
It is therefore important to consider the wording of the statute. Both s.77 and s.78 of the Building Act 1984 create powers instead of imposing a duty. That is, these sections allow the Council to carry out works or to apply to the Magistrates’ Court for an order in relation to a dangerous structure, but they do not require the Council to do so. This is because both sections use the word ‘may’, that is, the Council may apply to the Court or the Council may carry out works. Neither s.77 nor s.78 state that the Council shall or must apply to the Court or carry out works.
It is further interesting to know that public authorities do not owe a duty of care, at common law, simply because they have statutory powers or duties, even if, were they to exercise their statutory functions, they could prevent a person from being injured (see Poole BC v GN  UKSC 25). Public authorities, like private individuals, are generally not under a duty of care to prevent the occurrence of harm (see DFX (A Protected Party) v Coventry City Council  EWHC 1382 (QB)).
Therefore, as the Building Act 1984 does not require the Council to take any action in respect of dangerous walls, and as case law had found that public authorities do not owe a duty of care simply because they have statutory powers or duties, even if, were they to exercise their statutory functions, they could prevent a person from being injured, in situations were the owner of a dangerous wall cannot be identified the Council is not required to take any action.
The Council could choose to exercise its powers, though equally, the Council, could take no action at all. In situations where the owner of a dangerous structure is not known, s.94 of the Building Act 1984 provides that a notice can be served by addressing it to the owner of the structure and attaching it to a conspicuous part of the structure.
Attaching said notice to any dangerous walls in the Council’s area, may then help to identify the owner so that the necessary works can be carried out.