Building of special architectural or historic interest – Alteration work – Respondent obtaining planning permission to renovate parts of listed building – Appellant charging respondent with offence of carrying out unauthorised dismantling works – Court acquitting respondent unauthorised works not affecting character of building – Whether judge erring in law in approach to statutory scheme – Appeal dismissed
The respondent architect was engaged to plan and carry out renovation works to an old mill. The Grade II listed building comprised an old watermill, a farmhouse and a stable block. The stable block, although not mentioned in the listing, formed part of the listed building by virtue of section 1(5)(a) of the Planning (Listed Buildings and Conservation Areas) Act 1990.
In June 2005, the appellant council granted planning permission and listed building consent for the extension and alteration of the listed building. The renovations were to be carried out in two stages: the first involved the dismantling of a roof and the second various rebuilding works. In December 2005, a member of the public notified the appellants, as the prosecuting authority, that the stable block had been dismantled. On 6 January 2006, a planning enforcement officer visited the site and took photographs, which showed that the stable block had been largely dismantled. By October 2006, it had been totally dismantled, contrary to the terms of consent. The renovation works were completed by the end of 2006 without any intervention from the appellant.
However, following the completion of the renovation, the appellants laid an information charging the respondent with an offence, under section 9 of the 1990 Act, alleging that, contrary to section 7, he had effected unauthorised works of alteration by dismantling part of a listed building in a way that would affect its character as a building of special architectural or historic interest. After considering the renovations as a whole, the judge concluded that although the character of the building had been affected at the first stage, subsequent to the reconstruction, the works had not affected the special architectural or historic character of the building. The respondent was acquitted.
The appellants appealed by way of case stated arguing, inter alia, that, in the light of the words of section 7, and the purpose of the statutory scheme as a whole, the judge should have limited himself to considering the works at the dismantling stage when assessing their effect on the character of the listed building, rather than the entirety of the works.
Held: The appeal was dismissed.
Where a defendant was charged with effecting unauthorised works of alteration by dismantling sections of a listed building as part of a larger reconstruction project, a district judge was right not to limit his consideration to those works as charged but also to consider further unauthorised works of reconstruction or restoration to determine the effect on the special architectural or historic character of the building.
It could not be right for a planning authority to cease to assess the works in an artificial manner halfway through a project, although where works were being carried out in stages and each stage could be regarded as being separate and distinct, for example because of the time gap between each stage, an authority could decide not to follow that approach.
In determining whether a defendant had contravened sections 7 and 9 of the 1990 Act, the distinction between “alteration” and “demolition” in section 7 was significant since the removal of the entire building by demolition was bound to affect the special architectural or historic character of the building. One had to bear in mind that the purpose of the legislation was to protect the special character of listed buildings, which, by their nature, were entities that were intended to last for some time, and a realistic and practical approach had to be taken to the words of the statute. It was clear that parliament had deliberately chosen not to criminalise all works of alteration. Only those works that affected or would affect the character of a listed building as a building of special architectural or historic interest were caught by the 1990 Act: Shimizu (UK) Ltd v Westminster City Council [1997] 1 WLR 168 considered.
In any event, that construction of the statutory scheme did not inhibit a planning authority from serving an enforcement notice or applying for an injunction to terminate any unauthorised works.
Peter Harrison QC and Noemi Byrd (instructed by the legal department of East Riding of Yorkshire Council) appeared for the appellants; Graham Machin (instructed by Browne Jacobson, of Nottingham) appeared for the respondent.
Eileen O’Grady, barrister
