Rating of unoccupied property — Exemption for listed buildings under Town and Country Planning Act 1971 — House of Lords reverses decision of Court of Appeal who had held, affirming decision of Hodgson J, that the whole of the hereditament constituting the old Hamleys toy shop in Regent Street, including part on the east side of Kingly Street, was exempt from the unoccupied property rate as a listed building — The part of the Hamleys toy shop on the east side of Kingly Street was formerly connected to the Regent Street shop by a tunnel at basement level and a footbridge at second-floor level — Hodgson J and Court of Appeal held that it was, within the meaning of section 54(9) of the 1971 Act, a ‘structure fixed’ to the main building and was also ‘comprised within the curtilage’ of the latter, with the consequence that the whole hereditament was exempt from the rate — Held by the majority of their lordships (Lord Ackner dissenting) that this construction of section 54(9) produced unreasonable results and must be regarded as incorrect — ‘Structure’ in this context is intended to convey a limitation to such structures as are ancillary to the listed building itself, eg the stable block of a mansion house or the steading of a farmhouse — The building on the east side of Kingly Street was an independent building — The hereditament comprised one building which was listed, namely the main Hamleys building in Regent Street with its rear on the west side of Kingly Street, and another, the building on the east side, which was not — It was not the intention of Parliament to grant exemption from the rate to a hereditament of which a part only was listed — Lord Ackner in a dissenting speech considered that ‘structure’ in section 54(9) covered any building, and he would have dismissed the appeal — Appeal allowed; magistrate’s decision and issue of distress warrant restored
The following
cases are referred to in this report.
Attorney-General,
ex rel Sutcliffe v Calderdale Borough Council
(1982) 46 P&CR 399, CA
Corthorn
Land & Timber Co Ltd v Minister of Housing
and Local Government (1965) 17 P&CR 210; 63 LGR 490
Providence
Properties Ltd v Liverpool City Council
[1980] RA 189, DC
This was an
appeal by Westminster City Council, the rating authority, from a decision of
the Court of Appeal (reported at [1986] 1 EGLR 189; (1986) 278 EG 974) in
favour of a claim by Debenhams plc for exemption from unoccupied property rates
in respect of the premises in Regent Street and Kingly Street, London W1,
formerly Hamleys toy shop.
Graham Eyre QC
and Richard Hone (instructed by the City Solicitor, Westminster City Council)
appeared on behalf of the appellants; Matthew Horton and Michael Humphries
(instructed by Forsyte Kerman) represented the respondents, Debenhams plc.
In his speech,
LORD KEITH OF KINKEL said: This appeal raises difficult questions as to the
proper construction of certain of the unoccupied rates provisions of the
General Rate Act 1967 (as amended) in their application to buildings listed by
the Secretary of State, under section 54 of the Town and Country Planning Act
1971, as being of special architectural or historic interest. The proper
construction of certain provisions of section 54 is also in issue.
The appellants
are the rating authority for the City of Westminster, and the respondents were
at the material time owners of a hereditament described in the valuation list
which came into force on April 1 1973 as ‘200/202 Regent Street (and 50/52
Kingly Street)’. This hereditament was formerly Hamleys toy shop. It comprised
premises fronting on to Regent Street and running back to the west side of
Kingly Street at the rear and also (notwithstanding the description in the
list) further premises on the east side of Kingly Street and known as 27/28
Kingly Street. The back part of the former premises (50/52 Kingly Street) was
formerly connected to the latter premises by a footbridge passing over Kingly
Street at second-floor level and by a tunnel passing underneath it. The tunnel
was filled in by operations which concluded in January 1983 and the footbridge
was removed in March 1983. These works were done to enable 27/28 Kingly Street
to be sold separately. No physical demarcation existed between 200/202 Regent
Street and 50/52 Kingly Street.
In 1973 the
Secretary of State for the Environment compiled, under section 54 of the Act of
1971, a list of buildings of special architectural or historic interest which
included a number of properties in Regent Street. Under the heading ‘Regent
Street, W1 (East Side)’ there appeared inter alia ‘Nos 172 to 206
(even).’
The
respondents occupied the hereditament and carried on Hamleys toy shop there
until October 31 1981, when they vacated it, and it remained unoccupied when,
on July 22 1982, the appellants made a complaint against the respondents for non-payment
of rates amounting to £68,696.91 upon the hereditament in respect of the period
from February 1 1982 to March 31 1983. At the same time they issued a summons
applying for a distress warrant, which was heard by Mr Campbell, a metropolitan
stipendiary magistrate, on March 29 1983. The respondents claimed exemption
from unoccupied rates under Schedule 1 para 2(c) to the Act of 1967 as
amended, but the magistrate rejected the claim and issued a distress warrant,
holding that the exemption for listed buildings there provided for was not
available when, as he found to be the case, part only of the hereditament was
listed. He found that 200/202 Regent Street and 50/52 Kingly Street were listed
but that 27/28 Kingly Street was not. At the request of the respondents the
magistrate stated a case for the opinion of the High Court, in which he made
findings of fact upon which the foregoing account is based and posed the
following questions of law:
(i) Did I err in law in holding that only part
of the hereditament was listed?
(ii) Did I err in law in holding that the listed
part was 200/202 Regent Street and 50/52 Kingly Street?
The
respondents’ appeal by stated case was heard by Hodgson J, who allowed it and
answered the questions of law in the affirmative. On appeal by the rating
authority, the Court of Appeal (Fox, Neill and Ralph Gibson LJJ) affirmed that
decision. The authority now appeals to your Lordships’ House.
Section 17 of
the Act of 1967 provides that a rating authority may resolve that the
provisions of Schedule 1 to the Act shall apply to their area, and the
appellants have done so. Para 1(1) of Schedule 1 provides that in these
circumstances where any relevant hereditament in the area is unoccupied for a
continuous period exceeding three months ‘the owner shall, subject to the
provisions of this Schedule, be rated in respect of that hereditament for any
relevant period of
hereditament were occupied during that relevant period of vacancy by the
owner.’
By para 15:
‘relevant
hereditament’ means any hereditament consisting of, or of part of, a house,
shop, office, factory, mill or other building whatsoever, together with any
garden, yard, court or other land ordinarily used or intended for use for the
purposes of the building or part;
Para 2, as
amended by section 291 of and Schedule 23 to the Town and Country Planning Act
1971, provides:
2. No rates
shall be payable under paragraph 1 of this Schedule in respect of a
hereditament for, or for any part of the three months beginning with the day
following the end of, any period during which —
(a) the owner is prohibited by law from occupying
the hereditament or allowing it to be occupied;
(b) the hereditament is kept vacant by reason of
action taken by or on behalf of the Crown or any local or public authority with
a view to prohibiting the occupation of the hereditament or to acquiring it;
(c) the hereditament is the subject of a
building preservation notice as defined by section 58 of the Town and Country
Planning Act, 1971 or is included in a list compiled or approved under section
54 of that Act, or is notified to the rating authority by the Minister as a
building of architectural or historic interest;
(d) the hereditament is the subject of a
preservation order or an interim preservation notice under the Ancient
Monuments Acts 1913 to 1953, or is included in a list published by the Minister
of Public Building and Works under those Acts;
(e) an agreement is in force with respect to the
hereditament under section 56(1)(a) of this Act; or
(f) the hereditament is held for the purpose of
being available for occupation by a minister of religion as a residence from
which to perform the duties of his office.
It is in
subpara (c) of that paragraph which is directly in point here. If it be a
correct conclusion that the whole of the hereditament is to be regarded as
included in the list compiled by the Secretary of State in 1973,
notwithstanding that only part of it is specifically mentioned in that list,
then exemption from unoccupied rates will be available. Counsel for the
respondents argued that, on a proper construction and application of the
relevant provisions of the Act of 1971 as regards listing, this was indeed the
position.
Section 54(1),
(2) and (9) of that is in these terms:
(1) For the purposes of this Act and with a view
to the guidance of local planning authorities in the performance of their
functions under this Act in relation to buildings of special architectural or
historic interest, the Secretary of State shall compile lists of such
buildings, or approve, with or without modifications, such lists compiled by
other persons or bodies of persons, and may amend any list so compiled or approved.
(2) In considering whether to include a building
in a list compiled or approved under this section, the Secretary of State may
take into account not only the building itself but also —
(a) any respect in which its exterior contributes
to the architectural or historic interest of any group of buildings of which it
forms part; and
(b) the desirability of preserving, on the ground
of its architectural or historic interest, any feature of the building
consisting of a man-made object or structure fixed to the building or forming
part of the land and comprised within the curtilage of the building.
(9) in this Act ‘listed building’ means a
building which is for the time being included in a list compiled or approved by
the Secretary of State under this section; and, for the purposes of the
provisions of this Act relating to listed buildings and building preservation
notices, any object or structure fixed to a building, or forming part of the
land and comprised within the curtilage of a building, shall be treated as part
of the building.
The argument
for the respondents, which was accepted by Hodgson J and the Court of Appeal,
was that the building 27/28 Kingly Street, not mentioned in the list compiled
by the Secretary of State, was, within the meaning of section 54(9) a
‘structure’ which by the footbridge and the tunnel was fixed to the building
200/202 Regent Street and 50/52 Kingly Street, which was mentioned in that
list, or alternatively formed part of the land and was within the curtilage of
the latter building. Accordingly it fell to be treated as part of that listed
building. The argument was supported by reliance on Attorney-General ex rel
Sutcliffe v Calderdale Borough Council (1982) 46 P&CR 399. That
case concerned a disused mill and a terrace of cottages with a bridge linking
the two, the cottages having been formerly owned by the millowners and occupied
by their workers, though they had later come to be in separate ownership. The
mill was listed but the cottages were not. The Court of Appeal held that,
within the meaning of section 54(9), the terrace of cottages was a structure
fixed to the mill and further was one which formed part of the land and was
comprised within the curtilage of the mill. The cottages could not, therefore,
be demolished without the consent of the Secretary of State.
In my opinion,
the success or failure of the argument must turn on the meaning to be
attributed to the word ‘structure’ in section 54(9). In its ordinary
significance the word certainly embraces anything built or constructed and so
would cover any building. The question is whether its context here requires a
narrower meaning to be attributed to it. The wider meaning could lead to some
strange results. For example, if one house in an architecturally
undistinguished terrace were listed as having once been the birthplace of an
historically famous personage, it appears that all the houses in the terrace,
being fixed to the listed building either directly or through each other, would
require to be treated as part of it, as indeed might many other terraces
connected to that one. Many other such examples may be figured. Notice of
listing, under section 54(7), is required to be given only to the owner and
occupier of the listed building itself, so the owner of some quite remote building
might unwittingly undertake its demolition and become liable to penalties under
section 55(1). The incongruous results which might follow from the decision in
the Calderdale case were recognised by Stephenson LJ, giving the leading
judgment in the Court of Appeal, 46 P&CR 399, 405, but he took the view
that the argument from incongruity was met by the fact that the listing
building code of control did not prevent demolition or alteration but merely
required consent to it. It is to be observed that the words in section 54(9)
‘any object or structure fixed to a building, or forming part of the land and
comprised within the curtilage of a building’ echo similar words in section
54(2), where, however, the words are prefaced by ‘man-made’, and the relevant
object or structure must be a feature of the building. It is, I think, clear
that in the context of subsection (2) the word ‘structure’ is not intended to
embrace some other complete building in its own right. This indicates that the
draftsman of the relevant part of the Act has thought it appropriate to use the
word in a narrow sense the first time that he introduced the quoted phrase, and
it is a reasonable inference that he intended to use it in the same sense the
second time. At all events, the result is to introduce an ambiguity into
subsection (9) or, perhaps more accurately, to deepen the ambiguity which is
there already. In resolving a statutory ambiguity, that meaning which produces
an unreasonable result is to be rejected in favour of that which does not, it
being presumed that Parliament did not intend to produce such a result. In my
opinion, to construe the word ‘structure’ here as embracing a complete building
not subordinate to the building of which it is to be treated as forming part
would, in the light of the considerations I have mentioned, indeed produce an
unreasonable result. Stephenson LJ in the Calderdale case considered
that objection to be offset by what he regarded as part of the purpose of the
listing provisions, namely that of protecting the setting of an architecturally
or historically important building. But if that was part of the purpose, it
would have been to be expected that Parliament would not have stopped at other
buildings fixed to or within the curtilage of such a building, but would have
subjected to control also buildings immediately adjoining but not fixed to the
listed building or on the opposite side of the street. All these considerations
and the general tenor of the second sentence of subsection (9) satisfy me that the
word ‘structure’ is intended to convey a limitation to such structures as are
ancillary to the listed building itself, for example the stable block of a
mansion house, or the steading of a farmhouse, either fixed to the main
building or within its curtilage. In my opinion the concept envisaged is that
of principal and accessory. It does not follow that I would overrule the
decision in the Calderdale case, though I would not accept the width of
the reasoning of Stephenson LJ. There was, in my opinion, room for the view
that the terrace of cottages was ancillary to the mill.
The question
thus comes to be whether the building 27/28 Kingly Street was at the material
time ancillary to the building 200/202 Regent Street and 50/52 Kingly Street.
The former was not of its nature ancillary to the latter, in the sort of sense
that a steading is ancillary to a farmhouse. It was historically an independent
building. It is true that for a very considerable period of time both buildings
were occupied and used together for the purposes of Hamleys toy shop, but
throughout the rating year 1982-83 neither of them was being used for any
purpose whatsoever, and indeed it must have been in contemplation that there
would be no resumption of joint use, as is evidenced by the circumstance that
in October 1982 steps began to be taken to sever the links between the two
buildings with a view to 27/28
on a broad perspective 27/28 Kingly Street was not ancillary to the Regent
Street building. The matter of listing or not listing cannot turn upon the
business purposes or manner of use of adjoining properties of a particular
occupier. Fox LJ, giving the leading judgment in the Court of Appeal in this
case, said that 27/28 Kingly Street was really an annexe fixed to the rest of
the hereditament. From the point of view of the occupier that may have been so,
but the subordination of one building to another for the particular purposes of
someone who happens for the time being to occupy both does not mean that,
objectively speaking and for the purposes of the listing legislation, one of
the buildings is ancillary to the other. In my opinion, 27/28 Kingly Street was
an independent building and does not fall within section 54(9).
A large part
of the argument for the appellants was directed to the proposition that the
words in section 54(9) ‘for the purposes of the provisions of this Act relating
to listed buildings and building preservation notices’ had the effect that the
enactment which followed them was not to be taken into account for the purposes
of Schedule 1 to the General Rate Act 1967. In my opinion that proposition is
ill-founded. The quoted words have the effect, for the purposes of the listed
building provisions of the Act, of widening the definition of ‘building’ in
section 290(1) of the Act of 1971. No other effect can properly be attributed
to them. It would be an absurd result, such as cannot have been intended by
Parliament, if a structure subjected to listed building control by the Act of
1971 were to be treated as not so subjected for the purpose of some other Act
dealing with the consequences of listing.
Having reached
the conclusion that only the building 200/202 Regent Street and 50/52 Kingly
Street is listed, and not the building 27/28 Kingly Street, it is necessary to
consider whether or not para 2(c) of Schedule 1 to the Act of 1967 as amended
applies to that situation. The construction of para 2(c) presents difficulty
owing to the draftsman, as it would appear, not having kept in view the
distinction between a hereditament and a building. It is buildings, not
hereditaments, which may be the subject of building preservation notices (under
section 58 of the Act of 1971) and which are included in lists compiled under
section 54. Although a hereditament may consist in a building and no more,
there are a great many hereditaments which comprise a building and also
something more, even if only a small garden or yard. Some hereditaments may
comprise more than one independent building, as is the position here.
‘Hereditament’ throughout para 2 of Schedule 1 to the Act of 1967 must, in my
opinion, be read as ‘relevant hereditament’ as defined in para 15. The Schedule
is, after all, dealing only with relevant hereditaments. So it is clearly in
contemplation that a hereditament which attracts the exemption from rates
afforded by para 2 may be not only one which is a building and no more but also
one which is a building with a garden, yard, court or other land ordinarily
used for the purposes of the building. It follows that the presence of such
garden etc would not deprive the hereditament of the exemption, notwithstanding
that it is only the building, and not the whole hereditament, which, for
example, is included in a list compiled under section 54 of the Act of 1971.
Likewise, the presence of some ancillary structure such as a garage or
outhouse, either fixed to the main building or within its curtilage, would not
affect the exemption, since by virtue of section 54(9) such ancillary structure
would fall to be treated as part of the building.
The position
in the present case is that the hereditament comprises two independent
buildings, one of which is listed and the other of which is not. In the event
that one of the buildings, but not the other, were the subject of a building
preservation notice made under section 58 of the Act of 1971, it could be said,
without any undue straining of language, that the hereditament as such was the
subject of the notice, even though the notice applied to part only of it. If
one only of two buildings on the hereditament were included in a list compiled
under section 54, it could surely not be said that the hereditament as such was
included in the list. On the other hand, it is not likely that Parliament would
have intended to treat the two cases differently. Para 2 should be construed so
as to accord the same treatment to both. In making the choice between the
stricter and the more liberal constructions some assistance can, in my opinion,
be derived from para 3 of Schedule 1, which provides:
The Minister
may by regulations provide that rates shall not be payable under paragraph 1 of
this Schedule in respect of hereditaments of such descriptions as may be
prescribed by the regulations or in such circumstances as may be so prescribed
and the regulations may make different provision for hereditaments of different
descriptions and of different circumstances.
This provision
enables the minister to enlarge the classes of hereditaments in respect of
which the exemption is afforded. It does not enable him to restrict it. There
would seem to be nothing to prevent the minister, if so advised, from
prescribing by regulations hereditaments comprising both a listed and an
unlisted building in relation to which the value of the listed building
amounted to more than some specified proportion of the value of the whole
hereditament. It might seem unfair that exemption should be denied where the
value of the listed building accounted for a very large proportion of the value
of the whole hereditament. Yet from the other point of view it might seem
unreasonable that exemption should be afforded where the value of the listed
building formed a very small proportion of the total value. The minister has
been given power which would enable him to alleviate the former anomaly but not
the latter. Accordingly, para 3 is an indication in favour of the view that
Parliament intended the stricter construction of para 2(c) of Schedule 1 to the
Act of 1967.
In Providence
Properties Ltd v Liverpool City Council [1980] RA 189, a Divisional
Court consisting of Lord Lane CJ and Boreham J had occasion to consider the
scope of the para 2(c) exemption in relation to a hereditament which comprised
three warehouses, one of which was listed and the other two of which were not.
It was decided that the exemption was not available to a hereditament part only
of which was listed. The reasoning was that if Parliament had intended to
afford the exemption to such a hereditament it would have done so in express
terms. There is much force in that view of the matter, and taken in conjunction
with the other considerations set out above it must, in my opinion, determine
the issue in favour of the appellants.
My Lords, for
these reasons I would allow the appeal and restore the adjudication of the
stipendiary magistrate and the distress warrant. The questions posed in the
case stated do not deal exhaustively with the issues raised in the appeal. They
should be answered in the affirmative, but in addition it should be found that
on a true construction of para 2 of Schedule 1 to the Act of 1967 as amended
exemption from rates is not available to the respondents’ hereditament in
respect of the rating year 1982-83.
LORD TEMPLEMAN
agreed that the appeal should be allowed for the reasons given in the speech of
Lord Keith of Kinkel.
LORD GRIFFITHS
agreed that the appeal should be allowed for the reasons given in the speeches
of Lord Keith of Kinkel and Lord Mackay of Clashfern.
In a speech
concurring that the appeal should be allowed, LORD MACKAY OF CLASHFERN said: I
have the advantage of reading in draft the speeches prepared by my noble and
learned friends Lord Keith of Kinkel and Lord Ackner.
I agree with
both that the principal argument relied upon by the appellants in the present
case is ill-founded. I agree with my noble and learned friend Lord Keith of
Kinkel that this appeal should be allowed for the reasons which he has given.
Since I differ from my noble and learned friend Lord Ackner on this aspect of
the appeal and also from the unanimous judgment of the Court of Appeal I shall
add some observations.
Although the
question in this appeal arises in the context of relief from rates on
unoccupied property, the point that has divided us is of considerable
importance in the administration of the system of listed building control now
governed by the provisions of the Town and Country Planning Act 1971.
By the first
part of section 54(9) for the purposes of the Act of 1971 ‘listed building’
means a building which is, for the time being, included in a list compiled or
approved by the Secretary of State under the section. The list so compiled or
approved is to be a list of buildings of special architectural or historic
interest. Since it is obviously necessary that the list should identify the
buildings contained in it, the question whether a particular physical entity is
listed or not listed depends whether on reading the list and taking account of
the statutory provisions that entity is to be regarded as a building or part of
a building included in the list. In the present case the contention for the
respondents is that the entry in the list under the heading ‘Regent Street, W1
(East Side) Nos 172 to 206 (even)’ meant not only that the building which has
the address 200/202 Regent Street and, since it physically carries through to
Kingly Street, also has the address 50/52 Kingly Street and which I shall refer
to as ‘the Regent Street building,’ was included in the list but also that a
building on the opposite side of Kingly Street, namely 27/28 Kingly Street
which I shall refer to as ‘the Kingly Street building,’ was in the list. If
this contention is correct, inevitably a considerable number of other buildings
in Kingly Street, in Foubert’s Place, in Carnaby Street and in Fuch’s Place,
which were included in the block of which the Kingly Street building formed
part, were also included in the list. If the intention of the Secretary of
State in compiling or approving this list was to include all these buildings in
it one would have expected the entry to have clearly included them. If the
effect of the action taken by the Secretary of State was that all of these
buildings should be included, in my opinion the entry in the list is positively
misleading.
The magistrate
found that the entry in the list referred, and referred only, to the Regent
Street building and did not extend to the Kingly Street building. He has asked,
for the opinion of the court, whether he erred in law in so holding. The
respondents urge that he was wrong, and the reason for this submission is the
second part of section 54(9), which provides that:
for the
purposes of the provisions of this Act relating to listed buildings and
building preservation notices, any object or structure fixed to a building, or
forming part of the land and comprised within the curtilage of a building,
shall be treated as part of the building.
Before
considering this submission further I think it is necessary to refer to the
definitions of ‘land’ and ‘building’ provided in the interpretation section,
section 290(1) of the Act of 1971:
‘land’ means
any corporeal hereditament, including a building, and, in relation to the
acquisition of land under Part VI of this Act, includes any interest in or right
over land
and
‘building’
(except in sections 73 to 86 of this Act and Schedule 12 thereto) includes any
structure or erection, and any part of a building, as so defined, but does not
include plant or machinery comprised in a building.
Cases under
the Income and Corporation Taxes Act 1970 demonstrate that the word ‘plant’ is
a word of very extensive import and it is obvious that plant or machinery could
be fixed to a building and might include structures so fixed.
The statutory
provision which is now the latter part of section 54(9) first appeared in the
Town and Country Planning Act 1968. As an illustration of a question that had
arisen prior to that statutory provision which might throw light on the reason
for its insertion in the legislation in 1968, your lordships were referred to
the decision of Russell LJ sitting as an additional judge in the Queen’s Bench
Division in Corthorn Land & Timber Co Ltd v Minister of Housing
and Local Government (1965) 17 P&CR 210. In that case a building
preservation order had been made in respect of a mansion of outstanding
architectural merit. The building preservation order provided inter alia
that the mansion should not, without the consent of the planning authority, be
demolished, altered or extended and that the following items inter alia
should not be altered or removed:
1 27 portrait panels in the King’s Room,
being 19th-century copies of Tudor and Stuart Kings and Queens.
2 Carved oak panels in the wall of the Oak
Room dating from the 15th to mid-17th centuries.
3 A large wood carving in the Great Hall.
4 Large wooden medieval equestrian figures
on the main landing.
5 A pair of painted wooden panels depicting
the Hall in the ornate mantelpiece in one of the drawing rooms.
The owner
applied to quash the building preservation order on the ground that the
above-mentioned items were not properly included in it. It was held that any
chattel which was affixed definitely to a building became part of the building;
that there was no doubt that the items in dispute were all fixed and annexed in
their places as part of an overall and permanent architectural scheme and were
intended in every sense to be annexed to the freehold, and were accordingly
part of the building; and that, in these circumstances, the restriction on
their removal was properly made. Russell LJ, after saying that he did not
propose to detail the effect of the evidence laid before him as to the methods
of fixing employed in relation to the various items in dispute, said at 17
P&CR 210 at p 213:
It suffices
to say that all the items would properly be described as fixtures as that
phrase is commonly applied in law.
Russell LJ went
on to quote from a number of authorities which can be summarised by saying that
the ancient rule of the common law was that whatever is planted or built in the
soil or freehold becomes part of the freehold or inheritance; thus a house
becomes part of the land on which it stands and anything annexed or affixed to
any building (not merely laid upon or brought into contact with the building)
was treated as an addition to the property of the owner of the inheritance in
the soil and was termed a ‘fixture.’
This rule of the common law was relaxed in favour of trade to enable
tenants to affix their machinery or plant to a building or to the land and not
thus make a present of it to the landlord, so that machinery or plant fixed to
the inheritance for the purposes of trade may be removed by the tenant during
the tenancy under certain conditions.
In the Act of
1971 the general definition of ‘building’ excludes from its scope plant and
machinery. Certain items that otherwise would be ‘fixtures’ and form part of
the building are therefore excluded. Against this background it appears to me
that the word ‘fixed’ is intended in section 54(9) to have the same connotation
as in the law of fixtures and that what is achieved by the latter part of
section 54(9) is that the ordinary rule of the common law is applied so that
any object or structure fixed to a building should be treated as part of it.
The provision is dealing with the question whether certain things, namely
objects or structures, are to be treated as part of a building, not whether
what is undoubtedly a building or part of a building is to be regarded as part
of another building. The use of the indefinite article in describing the
subject-matter of the provision tends to suggest this, in my opinion. The
result would be to put beyond question the matter that was decided by Russell
LJ in the case to which I have referred and I consider that in its context this
is the natural interpretation of the provision. I think it is not a natural use
of language to describe two adjoining houses in a terrace by saying that one is
an object or structure fixed to the other. It would, I think, be a perfectly
appropriate provision in a contract for the sale of a house that there was
included in the sale any object or structure fixed to the house, but I think it
highly unlikely that the purchaser would expect under the terms of such a
contract to become the owner of the house next door, with which it shared a
mutual wall.
The
respondents’ contention involves reading the word ‘structure’ in its context as
including a completely distinct building which is connected structurally to the
first building. This reading seriously restricts the power of the Secretary of
State in relation to listed buildings, since on this view he could not select
one out of a terrace of houses nor could he select a part of a building to be
listed. Part of a building necessarily is fixed in the sense contended for to
the rest of the building. It is suggested that having regard to the purpose of
the Act of 1971 no harm is done by forcing the Secretary of State if he wishes
to list a building in a terrace to list the whole terrace, since in respect of the
buildings in the terrace not of architectural or historic interest, permission
for alteration or demolition could readily be given. However, section 54(2)(a)
gives ample power to the Secretary of State, if he chooses, to list the whole
terrace in respect of architectural or historic interest possessed by the
whole; and the suggestion involves a compulsory notification to the owners of
the whole terrace that their houses have been included in the list in view of
the terms of section 54(7). I consider the respondents’ construction is hard to
reconcile with the provisions of section 190 of the Act of 1971 dealing with
the service of a purchase notice when listed building consent has been refused,
conditionally granted, or modified. In certain circumstances the owner may
require the listed building to be purchased. Section 190(3) provides:
In this
section and in Schedule 19 to this Act, ‘the land’ means the building in
respect of which listed building consent has been refused, or granted subject
to conditions, or modified by the imposition of conditions, and in respect of
which its owner serves a notice under this section, together with any land
comprising the building, or contiguous or adjacent to it, and owned with it,
being land as to which the owner claims that its use is substantially
inseparable from that of the building and that it ought to be treated, together
with the building, as a single holding.
This seems to
envisage that a listed building will normally constitute a single holding.
In my opinion
it is inconsistent with this provision to interpret section 54(9) as having the
effect that if the Secretary of State lists one building in a terrace the
consequence is that all the other buildings in the terrace which are distinct
from the listed building and are owned separately from it and from one another
and whose uses are completely independent from that of the listed building are
to be treated as part of the listed building.
I see no
practical difficulty in the operation of the Act of 1971 on the construction
which appears to me to be correct. If a listed building
need to rely on section 54(9). So far as buildings are concerned which exist at
the date of the listing the Secretary of State will have the right to include
or exclude without being constrained to include by reason of physical
connection between a building he wishes to include and one he wishes to
exclude.
Applying these
considerations to the present case leads me to the conclusion that the
magistrate decided it correctly. He concluded that what is found in the list
was intended to refer only to the Regent Street building and was not intended
to include the Kingly Street building. I consider that he was not bound to hold
that the Kingly Street building was a structure fixed to the Regent Street
building. It was a completely distinct building which at the end of the period
in respect of which exemption was in question was completely separate from the
Regent Street building and even when connected to it by footbridge and tunnel
it was not a structure fixed to it within the meaning of section 54(9). The
magistrate was not, in my opinion, in any way bound to hold that the Kingly
Street building was within the curtilage of the Regent Street building as it
was separated from that at ground level by a public street, although, for
rating purposes, when the buildings were in common occupation they were treated
as a single hereditament. The effect of the respondents’ contention, in my
opinion, is to say that the list compiled or approved by the Secretary of State
included not only the Regent Street building but also the Kingly Street
building. The list, so long as it remained unaltered, therefore included the
Kingly Street building even after the footbridge was demolished and the tunnel
was closed and the two buildings were completely distinct and separated by a
public road. If the Secretary of State should now decide that the Kingly Street
building should be deleted from the list it is not entirely clear to me what
action he could take to achieve this purpose. The same consideration applies to
all the other buildings in the block, of which the Kingly Street building forms
part. According to the respondents’ contention, as I have already said, these
were all listed when 200/202 Regent Street was inserted in the list and notice
should have been served on the owners of all these properties in terms of
section 54(7) that they were so included. If this were truly the position the
only proper course, in my opinion, would have been to include their addresses
in the list along with 200/202 Regent Street. The concept of a building
impliedly in the list when it consists of premises distinct from those whose
address is given in the list seems to me calculated to lead only to confusion
in a case where the list is a document which requires to be registered in the
register of local land charges and which should, consequently, have the
precision necessary to enable a person inspecting that register to appreciate
all the subjects to which it relates.
In my opinion,
Attorney-General ex rel Sutcliffe v Calderdale Borough Council
(1982) 46 P&CR 399 is a very special case on its facts and I believe that
it was possible to treat the terrace and the mill, having regard to the history
of the properties, as a single unit. At the time the listing was made the whole
property was in one ownership and therefore when the mill was included a notice
to that effect was served on the only person who was interested as owner in the
terrace. For the reasons which I have already given, I cannot regard, with
respect, the reasoning by which the Court of Appeal in that case reached its
conclusion as according with the true construction of section 54(9) of the Act
of 1971.
In a
dissenting speech, LORD ACKNER said: When Mr Graham Eyre QC opened this appeal,
he submitted to your lordships, consistent with the appellants’ written case,
that the appeal raised only one question and that this question, although
wrongly answered by the Court of Appeal, had been properly formulated by Fox LJ
in the course of his judgment, with which Neill LJ and Ralph Gibson LJ concurred.
The question was:
Can a
building which is treated as part of the listed building by the provisions of
section 54(9) be properly regarded as ‘included in a list compiled or approved
under section 54 of the Town and Country Planning Act 1971’?
Neither in the
Court of Appeal nor in his case before your Lordships’ House did Mr Eyre seek
to suggest that if that question, contrary to his submissions, was answered in
the affirmative the appeal could succeed on any other ground or that it gave
rise to any other issue. Until invited by your lordships to consider the
matter, he did not suggest that the Court of Appeal were in error in their
following conclusions:
(a) that 27/28 Kingly
Street was a ‘structure fixed to’ 200/202 Regent Street, the building expressly
included in the list, and;
(b) that 27/28 Kingly
Street was a ‘structure forming part of the land and comprised within the
curtilage’ of that listed building.
And
accordingly, by reason of the provision of section 54(9) of the Act of 1971,
27/28 Kingly Street was to be treated as part of 200/202 Regent Street.
Hodgson J and
the Court of Appeal, in reaching their decisions on the above two matters,
derived assistance from Attorney-General ex rel Sutcliffe v Calderdale
Borough Council (1982) 46 P&CR 399 in which the leading judgment was
given by Stephenson LJ and with which Sir Sebag Shaw and I concurred. Mr Eyre,
neither in his case nor in your Lordships’ House, until invited to do so,
sought to criticise that decision. He submitted that the essential issue in the
Calderdale case was whether the terrace in question was subject to the
statutory control of works of demolition under section 55 of the Act of 1971.
He submitted that the Court of Appeal in that case did not have any reason to
consider the provisions of Schedule 1 to the General Rate Act 1967 relating to
the exemption from rates in respect of an unoccupied hereditament included in a
list compiled or approved under section 54 of the Act of 1971. He maintained
that there was no conflict between that case and Providence Properties Ltd
v Liverpool City Council [1980] RA 189. Mr Eyre contended that the
question as to what is or is not a ‘listed building’ or what is or is not to be
treated as part of such a building for the purpose of the provisions of the Act
of 1971 is wholly irrelevant to the question whether a hereditament is exempt,
by virtue of para 2(c) of Schedule 1 to the General Rate Act 1967, as being
‘included in a list compiled or approved’ by the Secretary of State under
[section 54 of the Act of 1971].
Mr Eyre’s
contention was that the words in section 54(9) ‘for the purposes of the
provisions of this Act relating to listed buildings’ confined the effect of
what is provided in the subsection — namely the widening of the definition of
‘listed building’ — to the provisions of the Act of 1971. It could not be taken
into account for the purposes of Schedule 1 to the General Rate Act 1967. I
entirely agree with the view expressed by my noble and learned friend Lord
Keith of Kinkel, whose speech in draft I have had the privilege of reading,
that this proposition is ill-founded. If a structure is by virtue of the Act of
1971 to be treated as a part of a building which has been expressly included in
the list, it cannot cease to be so treated for the purposes of some other Act
which itself makes special provision (exemption from rates in certain
circumstances) for buildings which are included in the list.
The fact that
the appellants were willing to accept the Court of Appeal’s construction of the
word ‘structure’ as used in section 54(9) of the Act of 1971 and their almost
total absence of enthusiasm in espousing the critical comments of that decision
made by your lordships during the course of argument is not, and cannot in any
sense be, decisive of the point. If the Court of Appeal in the Calderdale
case and in the instant appeal has misinterpreted those words, then your
lordships must so declare. However, the course which the appellants’ argument
took, particularly when they stressed at the outset of the appeal the
importance of their success in the appeal, is not lightly to be dismissed. It
certainly suggests that if the Court of Appeal was in error, in the Calderdale
case and/or in this case that error is not easily discernible. For the reasons
which I now set out I am unable to discern the error and accordingly I would
have dismissed this appeal.
(1) The literal interpretation of the words
‘structure fixed to . . .’
It has at no
time been disputed that ‘structure’ in its ordinary everyday sense includes a
building. Section 290 of the Act of 1971 is the definition section. It does not
define ‘structure.’ It provides,
however, that, except so far as the context otherwise requires, building
‘includes any structure or erection and any part of a building, as so defined,
but does not include plant or machinery comprised in a building.’ Thus, the power given by section 54 of the
Act of 1971 to the Secretary of State to compile lists of buildings of special
architectural or historic interest includes the power to list a part only of a
building. Thus, it is accepted that if the Secretary of State should include in
the list only the facade of a building, as indeed we are told he does from time
to time, then by virtue of section 54(9) the whole building, that is the
structure of which the facade is but a part, falls to be treated as part of
that which is expressly included in the list, ie the facade.
But in the
example given above, what is the building?
The facade,
building, let alone the original building as subsequently extended. Clearly on
a literal interpretation of the words of subsection (9) every part of the
building, original or extended, is ‘a structure fixed to’ the listed building,
the facade, and is by virtue of the subsection to be treated as part of the
facade. Thus far, I believe, there is no dispute. Yet to treat such a structure
as ancillary or subordinate or as a feature of the facade would, to my mind, be
quite unrealistic.
Approaching
the matter from another angle, one can well envisage a listed Georgian mansion,
far too large to provide a convenient private residence, whose optimum, or most
profitable, use, bearing in mind its situation and the size of its grounds, is
that of a high-class hotel. However, for such a development considerable
extensions and alterations are necessary to provide more bedroom accommodation,
conference halls and other facilities. Clearly such alterations and extensions
would affect the character of the Georgian mansion and accordingly listed
building consent would be required (see section 55). If the consent were to be
given on terms, inter alia, that the extensions should be achieved by
building two extensive wings on to the Georgian mansion, again quite clearly on
a literal interpretation of the words of the subsection the wings, when built,
would fall to be treated as part of the Georgian mansion.
However,
assume that the extra accommodation which is contemplated as being necessary to
make the development a success would so dwarf the listed building, if it were
to consist of two wings built on to the listed building, that listed building
consent is only given on terms that two large buildings were erected on either
side of the listed building but each connected thereto with a bridge. Again,
applying the ordinary meaning to the word ‘structure,’ each of those new
buildings would by reason of the terms of section 54(9) be treated as part of
the listed building.
(2) The purposive ‘approach’
The purpose of
‘listing’ buildings is to ensure the protection and enhancement of the local
heritage of buildings. This is achieved by making it an offence for a person to
execute ‘any works for the demolition of a listed building or for its
alteration or extension in any manner which would affect its character as a
building of special architectural or historic interest’ (section 55(1)). To
confine this control to the building which is expressly included in the list,
because of its special architectural or historic interest, may be often quite
insufficient — the example of the Georgian facade referred to above is but one
obvious example. Hence the extended definition of ‘listed building’ contained
in section 54(9). If the two additional buildings connected to the Georgian
mansion in the example given above are not, when built, to be treated as part
of the mansion, the purpose of the Act would be frustrated. Listed building
consent would not have been necessary in the first instance and demolition of
one of the new buildings, thereby destroying the whole harmony of the
development, could take place at the whim of the owner. It is common ground
that no planning permission would be required for such demolition and that the
building by-law control is designed only to ensure that the physical stability
of the remaining building is not affected, that control not being concerned
with aesthetics.
Thus, both the
ordinary meaning of the words used in section 54(9) and the very purpose of the
legislation strongly supports the proposition that the word ‘structure’ covers
any building and therefore includes 27/28 Kingly Street. It is not disputed
that it was ‘fixed to,’ that is joined on to, 200/202 Regent Street both by the
underground tunnel and by the footbridge. Moreover, it formed part of the land
and was comprised within the curtilage of 200/202 Regent Street.
(3) Does the context require a different meaning
from that normally associated with the ordinary use of the word?
In the Calderdale
case there was a terrace of cottages, a mill and a bridge which linked the two.
The mill was expressly included in the list but the terrace was not. The issue
was — was listed building consent necessary for the demolition of the
terrace? Skinner J, dealing with the
first limb of section 54(9), held that the terrace was not a ‘structure fixed
to’ the mill on the ground, not argued by counsel or put to them by the judge,
that the terrace could not be both fixed to the mill and comprised in the
curtilage of the mill and that the two alternative limbs of section 54(9) were
mutually exclusive. He then proceeded to give his reasons for holding that the
terrace was within the curtilage of the mill. The Court of Appeal rejected this
proposition, concluding that a structure can be both fixed to a listed building
and comprised within its curtilage, as indeed had been common ground before the
judge. No reliance was placed in your Lordships’ House on this aspect of
Skinner J’s decision.
Skinner J’s
interpretation of the first limb of section 54(9) was designed to avoid what he
considered was the incongruity of deciding, in accordance with the ordinary
sense of the words of the subsection, not only that the first of the cottages
was fixed to the mill but so was the whole terrace.
Stephenson LJ
in the Calderdale case expressly accepted that the literal construction
could give rise to incongruity. He said at 46 P&CR 399 at p 405:
a multiple
store adjacent to the birthplace of a statesman might have to be treated as
part of the birthplace because it was a structure fixed to it. A block of flats
replacing the stables of the mansion house might have to be treated as part of
the mansion because they are within the curtilage of the mansion.
However, he
concluded, rightly in my judgment, that the theoretical absurdities are fairly
met by the nature of the control imposed on listed buildings and all their
parts, actual and deemed. The code of listed building control does not prevent
demolition or alteration or extension. It merely requires consent to such
works. As Mr Eyre emphasised, there is likely to be far less difficulty in
obtaining permission to demolish, alter or extend a structure fixed to a
building, which has not been expressly referred to in the list, since ex-hypothesi
it is not of itself of sufficient architectural or historic interest to merit
specific mention.
In the Calderdale
case a subsidiary argument, not taken before the judge, was raised in the
notice of appeal. This argument, which was rejected by the Court of Appeal and
not in terms adopted by Mr Eyre in your Lordships’ House, has apparently found
some favour with your lordships. As I understand it, it proceeds as follows.
Section 54(2)
of the Act of 1971 provides:
In considering
whether to include a building in a list compiled or approved under this
section, the Secretary of State may take into account not only the building
itself but also —
. . .
(b) the desirability of preserving, on the ground
of its architectural or historic interest, any feature of the building
consisting of a made-made object or structure fixed to the building or
forming part of the land and comprised within the curtilage of the building
[emphasis added].
The submission
in the Calderdale case was that the words which I have emphasised were
intended by the draftsman to be included in section 54(9) immediately prior to
the words ‘any object or structure fixed to a building’, thereby qualifying and
very substantially limiting the ordinary meaning, inter alia, of the
word ‘structure’ to a mere feature or characteristic of the building which has
been expressly listed. Thus the words in section 54(9) with which your
lordships are concerned are said to be mere shorthand for the words in section
54(2)(b).
I cannot
attribute to the draftsman of section 54 some invincible repugnance to repeat
in subsection (9) some eight words which he had used in an earlier subsection
of the same section. The words in section 54(2)(b) are used in a quite
different context, namely in the context of the factors, other than the
building, which the Secretary of State may take into account when considering
whether or not to include a building in the list. Section 54(2)(b) empowers the
Secretary of State to list a building which may have little or no architectural
or historic interest if it includes a special feature, eg a staircase, a
painted ceiling or a 17th-century folly within its grounds. That subsection is
not concerned with extending the definition of ‘listed building.’ If such a narrow construction is acceptable
then it really defeats the purpose of the Act of 1971.
However, I do
not understand your lordships to limit ‘structures’ to mere features or
characteristics of the building expressly included in the list. Your lordships
are prepared to accept that ‘structure’ has a wider meaning and includes a
separate building provided it is ancillary or subordinate or an accessory to
the building expressly included in the list. Your lordships would not,
therefore, overrule the decision in the Calderdale case, that the
terrace of cottages were a ‘structure fixed to’ the mill, but would not accept
the width of the reasoning of Stephenson LJ.
The only
support for this approach appears to me to be a combination of the language of
section 54(2)(b) and the incongruity argument. With all proper respect, I cannot
accept that this provides sufficient justification for departing so radically
from the ordinary
used.
However, to my
mind, even on that interpretation, 27/28 Kingly Street qualified to be treated
as part of 200/202 Regent Street. It was attached to the main shop in order to
extend its shopping facilities. Understandably, listed building consent was
thought to be necessary for the removal of the connecting footbridge and this was
accordingly applied for and granted prior to its demolition in March 1983. Nos
27/28 Kingly Street was used as a subordinate part of the main shop and an
ancillary thereto. It was, as Fox LJ aptly described it, an annexe. It is thus
in no way surprising that it, together with the main shop 200/202 Regent
Street, formed a single hereditament for rating purposes.
The appeal
was allowed.
