Trustees cannot demolish the Howard Church, Bedford, without first obtaining listed building consent–House of Lords puts a construction no one else had thought of on the words ‘for the time being used for ecclesiastical purposes’–Once the bulldozers are in, the building cannot come within that phrase, and that is the stage at which the use must be tested
This was an
appeal by HM Attorney-General, at the relation of Bedfordshire County Council,
from a decision of the Court of Appeal on July 17 1974 holding that on the true
construction of section 56 (1) of the Town and Country Planning Act 1971 the
respondents, the Trustees of the Howard United Reform Church, were entitled to
demolish the Howard Church, Bedford, without obtaining listed building consent
under section 55 of the Act.
Mr D Fennell
QC and Mr C Colston (instructed by Sharpe, Pritchard & Co) appeared for the
appellant, and Mr G B H Dillon QC and Mr A May (instructed by Kingsford Dorman
& Co) represented the respondents.
LORD DIPLOCK
and LORD SIMON OF GLAISDALE said that they agreed with the speech of Lord Cross
of Chelsea, and would allow the appeal.
LORD CROSS OF
CHELSEA said that the Howard Church in Bedford had since May 1971 been included
in a list of buildings of special architectural or historic interest. The
trustees wished to demolish it and to sell or lease the site for development as
offices. The Bedfordshire County Council, the local planning authority, said
that the trustees could not lawfully demolish the building unless they first
obtained ‘listed building consent’ under section 55 of the Town and Country
Planning Act 1971. The trustees replied that they were exempted from this
requirement by section 56 (1) of the Act, which excluded the application of
section 55 to works in relation to (inter alia) ‘an ecclesiastical
building which is for the time being used for ecclesiastical purposes or would
be so used but for the works.’
The
legislation directed to the preservation of buildings of architectural or
historic interest had from the first contained an exemption from control of
‘ecclesiastical buildings for the time being used for ecclesiastical purposes,’
and in order properly to interpret the meaning and extent of the exemption as
it now stood in the 1971 Act it was necessary to bear in mind the development
of the legislation over the last 60 years or so. The expression ‘an
ecclesiastical building which is for the time being used for ecclesiastical
purposes’ first found a place in the statute book in the Ancient Monuments
Consolidation and Amendment Act 1913. That Act, which applied to Scotland as
well as to England and Wales, empowered the Commissioners of Works (inter
alia) to make preservation orders in respect of and to compile lists of
monuments the preservation of which was a matter of public interest by reason
of the historic, traditional, artistic or archaeological interest attaching thereto,
but section 22 excluded from the definition of ‘monument’ ‘an ecclesiastical
building which is for the time being used for ecclesiastical purposes.’ The definitions of ‘monument’ and ‘ancient
monument’ in the 1913 Act were changed by section 15 of the Ancient Monuments
Act 1931, which (inter alia) empowered the commissioners to make schemes
for the preservation of ancient monuments, but the exception of ‘an
ecclesiastical building for the time being used for ecclesiastical purposes’
was retained.
From 1932
onwards, the control exercisable by the Commissioners of Works under the
Ancient Monuments Acts came to be supplemented by control exercisable by town
planning authorities. Section 17 of the Town and Country Planning Act 1932
empowered a planning authority to make (subject to the approval of the
Minister) an order forbidding the demolition without its consent of any
building of special architectural or historic interest within its area, but
subsection (5) provided that nothing in the section should empower a council to
make an order (a) with respect to any building which was for the time being
used for ecclesiastical purposes; (b) with respect to any building to which a
scheme or order made under any enactment for the time being in force with respect
to ancient monuments applied, and (c) with respect to any building for the time
being included in any list of monuments published by the Commissioners of Works
under any such enactment. Section 29 (1) of the Town and Country Planning Act
1947, which replaced the 1932 Act, extended the powers of a local planning
authority to make ‘building preservation orders’ by providing that such orders
might apply not only to the demolition but also to the alteration or extension
of the building in question, but it too contained the same three exceptions as
appeared in section 17 of the 1932 Act.
Subsection (5)
of section 29 provided (inter alia) that a person upon whom notice of a
preservation order had been served by the authority and who executed or caused
or permitted to be executed any works in contravention of the order should be
guilty of an offence and liable on summary conviction to a fine not exceeding
£100. Section 30 (1) directed the Minister to compile or approve for the
guidance of local planning authorities lists of buildings of special
architectural or historic interest; subsection (4) directed him to serve on
every owner and occupier of a building on the list notice that the building had
been included on it; and subsection (6) provided that so long as any building
was included on such a list, not being a building in respect of which a
preservation order had been made or a building in respect of which there was no
power to make such an order, no person should execute or cause or permit to be
executed any works for the demolition of the building or for its alteration or
extension in any manner which would seriously affect its character unless at
least two months before the works were executed notice in writing was given to
the local authority.
Sections 30 to
33 of the Town and Country Planning Act 1962 contained provisions which, so far
as were relevant to this case, were to the same effect as those in sections 29
and 30 of the 1947 Act. But Part V of the Town and Country Planning Act 1968,
which amended the 1962 Act, introduced a different system for the protection of
buildings of architectural and historic interest, and that new system was
reproduced in the Town and Country Planning Act 1971, which (inter alia)
repealed and consolidated the relevant parts of the Acts of 1962 and 1968.
Briefly stated, the power to make preservation orders and the provisions as to
the effect of the inclusion of a building on the list disappeared, and in their
place it was provided that the execution of 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 without ‘listed building consent’ should itself constitute an offence.
Power was also given to planning authorities to serve ‘building preservation
notices’ in respect of buildings not on the list which they thought ought to be
included in it, which notices had the effect of making the provisions of the
Act with regard to listed buildings apply to the buildings in question for a
limited period so that the Secretary of State might decide whether to include
them in the list or to decline to do so. Among the provisions of the 1971 Act
which were relevant to the determination of the present problem were section
54 (1), (7) and (9), section 55 (1), (2) and (5), section 56 (1) and section 58
(1) to (4).
The Howard
Church was built between 1773 and 1777 and enlarged in 1849. The building
consisted of the church itself, the church hall behind it, and a number of
other rooms, including some rooms built in 1878 as school-rooms. By virtue of
section 54 (9) the church hall and the other rooms all formed part of the
‘listed building.’ As long ago as 1969,
the trustees formed the view that because of its dwindling numbers the
congregation ought to unite with another neighbouring body, demolish the church
and sell or lease the site for development. The subsequent course of events was
succinctly but vividly set out in the following extract from the judgment of the
Master of the Rolls:
The Howard
Church entered into negotiations with the Bunyan Meeting Hall, but this came to
nothing. Then the Howard church decided to unite with St Luke’s Presbyterian
and Moravian Churches. On January 7 1971 it was agreed that the two churches
should unite for regular Sunday worship and joint weekday activities as from
Easter Day, April 11 1971. It was anticipated that, in consequence, the
buildings of the Howard Church in Mill Street would become redundant. They
could then be demolished and replaced by offices. That would bring in funds
which would help the church in its difficulties. Steps were taken to this end.
The Howard Church made inquiries of the planning authorities. The chief
planning officer to the Bedford Corporation on February 1 1971 replied that the
Howard Church was not on the list or a ‘listed building’ and that the planning
committee would not oppose its demolition. So the Howard Church went ahead with
the proposals. They invited the minister of St Luke’s to become minister of the
Howard Church. He accepted. They decided to sell the organ and pianos and to
send the records to the county record office. This was done. On April 4 1971
they held the last regular church service in the building. Then the blow fell.
On May 14 1971 the Secretary of State approved a list which contained this
building as a ‘listed building.’ The
trustees of the Howard Church realised that this might upset their plans. If
they ceased to use the building for ecclesiastical purposes they would need the
special consent, for they would not be within the exemption in section 56 (1).
So they were advised to continue to use the building for church activities.
They did what they could in this way:
(1) They did not use the nave of the church. They
took out the chairs from it. They removed some of the pews. They took up some
of the floor-boards.
(2) They did use the vestries and rooms at the
back. The user can be divided into two categories:
(a) Meetings the primary purpose of which was to
advance the work of the church in prayer and worship. These included the
monthly church meetings, the meeting of the elders, and the carol service.
(b) Meetings the primary purpose of which was to
advance the fellowship of the members of the church by social gatherings and
such like. These included the Women’s Fellowship on Tuesdays, Thursday Circle
on Thursdays, coffee mornings on Saturdays.
The trustees
hoped that these activities would earn for them the exemption in section 56
(1). But the Bedfordshire County Council did not agree. To test the position,
these proceedings were brought.
The form of the
proceedings was an originating summons issued on March 15 1973 by the
Attorney-General at the relation of the Bedfordshire County Council against the
trustees for a declaration that the listed building was not ‘an ecclesiastical
building which is for the time being used for ecclesiastical purposes’ within
the meaning of section 56 (1) (a) of the Town and Country Planning Act 1971,
and for an injunction to prevent the defendants from demolishing it. The
summons came before Willis J in July 1973. Counsel for the plaintiff submitted
that ‘for the time being’ meant the date of the issue of the summons and
counsel for the defendants that it meant the date of the hearing, but they
agreed that the difference between them was academic, since the factual
situation was the same at both dates. The judge held (a) that the church had by
disuse lost the character of an ‘ecclesiastical building,’ and (b) that in any
event the only ‘ecclesiastical purposes’ for which it was being used were the
church meetings, the elders’ meeting and the carol service, and that having
regard to the infrequency of this user and the small part of the building
involved in it it did not justify a finding that the building (assuming it to
be properly described as an ecclesiastical building at all) was being used for
ecclesiastical purposes within the meaning of the section. Accordingly he made
the declaration for which the plaintiff asked.
The trustees
appealed to the Court of Appeal, which reversed the order of the judge but gave
the plaintiff leave to appeal to the House on condition that he did not ask
that the order of the Court of Appeal as to costs should be varied and that the
council should pay the costs of the trustees of the further appeal. The
trustees on their side continued the undertakings which they had given to
Willis J not to demolish the building. All three members of the Court of Appeal
held that the building, being owned by a church, having been built as a church,
and having been used as a church for 200 years and never been used for secular
purposes, was an ‘ecclesiastical building’ within the meaning of the section.
On the question whether it was for the time being used for ecclesiastical
purposes, the Master of the Rolls said that the relevant time was the period
since April 1971, when services in the church were discontinued, and the Lords
Justices evidently took the same view. All three members of the court agreed
with the judge that the only user for ‘ecclesiastical purposes’ in that period
was for the church meetings, elders’ meetings and the carol service, but they
thought that such user was sufficient to constitute user for ecclesiastical
purposes within the meaning of the section. If they were wrong in that view of
the matter, they thought that the building, though not for the time being used
for ecclesiastical purposes, ‘would be so used but for the works.’ The ‘works’ referred to meant in their view
not the actual but the proposed works, and if there had been no prospect of
their being able to demolish the building the church would have continued to be
used for church services.
On appeal to
the House, the appellant sought and obtained leave to make a submission as to
the meaning of ‘ecclesiastical building’ which had not been made below, namely,
that ‘ecclesiastical’ was equivalent to ‘Anglican.’ The basis of this submission was that the
reason why the exception was originally introduced in 1913 must have been
because it was thought that the faculty jurisdiction exercised by the Consistory
Courts of the Church of England was a sufficient guarantee that any ‘ancient
monuments’ subject to that jurisdiction would be adequately protected. He (his
Lordship) had no hesitation in rejecting that submission. It was possible that
in an Act passed in the 18th century and limited in its operation to England,
Parliament might have meant the expression ‘ecclesiastical building’ to refer
only to a building belonging to the established church and not also to Roman
Catholic churches or nonconformist chapels. The position was however very different
in 1913, and even if the operation of the 1913 Act had been confined to England
he (Lord Cross) would not have construed it in so restricted a sense. But the
1913 Act in fact extended also to Scotland, and the exception had found a place
in a series of Scottish Town Planning Acts. The existence of the faculty
jurisdiction might have been a reason–perhaps the chief reason–for the original
insertion of the exception, but that fact, if it were a fact, would afford no
sufficient ground for limiting the meaning of the adjective
‘ecclesiastical.’ Moreover, the
reference to a ‘minister of religion’ in the last sentence of section 58 (2) of
the 1971 Act told against the limited meaning which the appellants would put on
the word.
The argument
as to what buildings could and what buildings could not properly be described
as ‘ecclesiastical buildings’ had ranged over a wide field and raised many
questions to which it was unnecessary and would be unwise
religious buildings, or did it extend to synagogues and mosques? To what extent was the ownership of the
building a relevant consideration? Did
it make a difference whether the building was built as a church or not? Must one exclude all considerations of user
in deciding whether or not the building was an ecclesiastical building? It was enough to say that whatever test one
applied, the Howard Church was an ecclesiastical building unless one thought,
as the judge appeared to have thought, that a disused church was not an
ecclesiastical building even though it never had been used and was not being
used for secular purposes. On that point the judge was, in his (Lord Cross’s)
judgment, wrong, and the Court of Appeal right.
The two
questions (1) how many of the limited uses to which the building had been put
since April 1971 could be regarded as uses for ecclesiastical purposes, and (2)
whether such uses as were to be so regarded were sufficient to bring the
exception into operation or should be disregarded on the de minimis
principle, only arose if the courts below were right in thinking that the words
‘for the time being’ in section 56 (1) (a) referred to a period before the
works began to be executed. He (his Lordship) was of opinion that they were
wrong in so thinking. Under the earlier Acts, the words ‘for the time being
used’ clearly referred to the time of the making or contemplated making of a
preservation order. Under the system introduced in 1968, the execution of works
to a listed building was an offence unless section 56 excluded the particular
works from the ambit of section 55. So ‘for the time being used’ must, he
thought, refer to the time at which the question whether an offence was being
committed fell to be determined, that was to say, when the works were being
carried out. So if the parties tested that question by quia timet proceedings,
as they did here, the court must look into the future and ask itself whether,
if the proposed works were carried out, the building would be being used for
ecclesiastical purposes while they were being carried out or, if not, would be
being used for such purposes but for the works. On this construction the
addition of the words ‘or would be so used but for the works’ to the formula
made very good sense. Some works might not be so extensive as to necessitate
the closing of the building while they were being executed, others might be so
extensive that the building had to be closed. The added words made it clear
that in the latter case no offence would be committed even though the building
was not being used for ecclesiastical purposes when the works were being
carried out.
If it had been
necessary to consider it, he (his Lordship) would have found the question
whether the Howard Church had been being used for ecclesiastical purposes since
April 1971 difficult to answer. ‘Ecclesiastical purposes’ was a vague phrase
which might mean only purposes connected with the use of the building for
corporate worship, or might extend to any purposes which the church authorities
might think likely to foster Christian fellowship among the members of the
congregation. Again, although the uses to which parts of the building were
being put from time to time were genuine and not colourable uses, they extended
to only a small part of the building. All that he (Lord Cross) would say on
this aspect of the case was that the fact that the construction which the
courts below had put on the words ‘for the time being used’ led to such
difficulties was a further reason for thinking that it could not be right.
It was clear
that whether or not it was being used for ecclesiastical purposes today the
Howard Church would not be being so used when it was being demolished. The
trustees, however, said that it would be being used for ecclesiastical purposes
but for the works of demolition, since it was only because they thought that
they would be able to demolish the building that they (the trustees) joined
with St Luke’s and gave up holding services in it. Such a construction of the
words ‘would be so used but for the works’ struck him (his Lordship) as very
unnatural. If a stranger who saw the church being demolished were to ask why
the building was not being used as a church, he would hardly think ‘because the
works of demolition which you see in progress make such use impracticable’ a
satisfactory answer. The real reason would be because the trustees had decided
to demolish it. Nevertheless the trustees could (and did) argue that the fact
that the opening words of section 56 (1) referred to works of demolition as
well as to works of alteration or extension made it impossible to limit the
works referred to in the phrase ‘or would be so used but for the works’ in
paragraph (a) to works which necessitated a temporary closure of the building.
Those words must, they said, cover works which would make it for ever
impossible that the building should again be used for ecclesiastical purposes,
and obliged one to place on the phrase the strained construction which they
would put on it. This argument overlooked the fact that the opening words of
section 56 (1) governed not only paragraph (a) but also paragraphs (b) and (c).
As applied to (b) and (c), they must be limited to works of partial demolition
which would not prevent the rest of the building being once more used for
ecclesiastical purposes when they had been completed.
If the ‘works’
mentioned in paragraph (a) included works of total demolition, then it must
follow that if the trustees of an ecclesiastical building stopped using it for
ecclesiastical purposes before they had decided to demolish it, and later
decided to demolish it while it was unused, they had to obtain ‘listed building
consent,’ whereas if they decided to demolish it while they were still holding
services in it, and went on using it for ecclesiastical purposes until the
bulldozers made its continued use for such purposes impracticable, they did not
require ‘listed building’ consent. That would be a ridiculous distinction to
draw. Moreover, while one could see some sense in Parliament saying that so
long as a church was being used as a church the church authorities should be
free to make changes in its structure without being subject to control by
public authorities on aesthetic or conservationist grounds, there was no reason
that he (Lord Cross) could see why they should be free from such control if
they decided to demolish the church. For these reasons he would allow the
appeal and restore the order of Willis J.
LORD
KILBRANDON and LORD SALMON agreed with Lord Cross, and the appeal was accordingly
allowed.
