Rating of unoccupied property — Exemption for listed buildings under Town and Country Planning Act 1971 — Position where part of the unoccupied building is not mentioned in list but forms part of the hereditament for rating purposes — Definition of listed building in section 54(9) of the 1971 Act as covering a structure fixed to the building or comprised within the curtilage of the building — Application to the old Hamleys toy shop in Regent Street, part of which was on the further side of the adjoining Kingly Street, but was connected to the Regent Street shop by a tunnel at basement level and a footbridge at second-floor level — Appeal from decision of Hodgson J, who had held that relief from the unoccupied rate could be claimed in respect of the whole hereditament under the listed building exemption — Rating authority submitted that the exemption did not apply as it required the whole hereditament to be included in the list whereas in the present case part of it was not — Held, affirming the decision of Hodgson J, that at all material times the part of the hereditament on the further side of Kingly Street was a structure fixed to the remainder of the hereditament and also formed part of the curtilage of the larger building which constituted the remainder of the hereditament — The policy underlying the exemption of listed buildings from the unoccupied property rate in para 2(c) of Schedule 1 to the General Rate Act 1967 was the recognition of the fact that such buildings are subject to a statutory control which seriously affects the power of the owner to make full economic use of them — Such statutory control applied to the structures affixed to a building or comprised within its curtilage mentioned in section 54(9) of the 1971 Act — Hence the whole hereditament in the present case was within the exemption from the rate — Appeal dismissed
This was an
appeal by Westminster City Council from the decision by Hodgson J, reported at
[1985] 1 EGLR 159; (1985) 274 EG 826, allowing an appeal from the decision of a
metropolitan stipendiary magistrate who had directed the issue of a distress
warrant in respect of a claim by the council against Debenhams plc for
unoccupied property rates on premises in Regent Street and Kingly Street,
London W1, formerly occupied by Hamleys toy shop.
Graham Eyre QC
and Richard Hone (instructed by T F Neville, City Solicitor, Westminster City
Council) appeared on behalf of the appellants; Mathew B Horton (instructed by
Forsyte Kerman) represented the respondents.
Giving
judgment, FOX LJ said: This appeal is concerned with the provisions of the
General Rate Act 1967 regarding the rateability of
buildings of special architectural or historic interest compiled under section 54
of the Town and Country Planning Act 1971.
The appeal is
by the Lord Mayor and Citizens of the City of Westminster (‘The council’) from
a decision of Hodgson J, on an appeal by way of case stated from an order of
the metropolitan stipendiary magistrate and whereby the magistrate directed
that a distress warrant should be issued in the sum of £68,696 relating to a
period from February 1 1982 to March 31 1983 during which a hereditament owned
by the respondents (‘Debenhams’) was unoccupied.
The council
are the rating authority for the rating area of the City of Westminster.
Debenhams were at all material times until October 31 1981 or thereabouts the
rateable occupier of the hereditament in question, which consisted of Hamleys
toy shop in Regent Street, W1. On or about October 31 1981 Debenhams ceased to
be in rateable occupation. The premises thereafter were, at all material times,
unoccupied but Debenhams remained the owner.
At the
material times Hamleys consisted of three premises, namely 200-202 Regent Street,
50-52 Kingly Street and 27-28 Kingly Street. The hereditament was entered in
the valuation list as ‘200-202 Regent Street (and 50-52 Kingly Street)’. The
magistrate found that the latter description was intended to include 27-28
Kingly Street.
Kingly Street
is more or less parallel with Regent Street. Hamleys’ shop front was in Regent
Street (200-202); the shop ran through to the west side of Kingly Street
(50-52). Nos 27-28 Kingly Street are on the east side of Kingly Street. The
magistrate found as a fact that 50-52 Kingly Street and 27-28 Kingly Street
were connected by a footbridge at second-floor level and by a tunnel at
basement level; customers at the shop were thus able to walk through the shop
from the Regent Street front to 27-28 Kingly Street. Works to fill in the
tunnel were commenced in October 1982 and were completed in January 1983; the
footbridge was removed in March 1983.
The magistrate
also found that:
During the
relevant period within the part of the hereditament comprising 200-202 Regent
Street and 50-52 Kingly Street there was no physical feature enabling one to
identify where the Regent Street property ended and the Kingly Street property
began. There was a central staircase serving both which had been provided at
the time the property was constructed.
The absence of
any distinguishing feature between 200-202 Regent Street and 50-52 Kingly
Street was probably of long standing. The tunnel was constructed pursuant to a
licence of January 27 1921 which authorises the construction of ‘a subway under
the highway of Kingly Street and numbers 200-202 Regent Street’.
Under section
17 of the General Rate Act 1967 a rating authority may, by resolution, adopt
the provisions of Schedule 1 to the Act. By para 1(1) of Schedule 1 it is
provided that where in the case of a rating area where a resolution under
section 17 is in operation:
any relevant
hereditament in that 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 vacancy; and the
provisions of this Act shall apply accordingly as if the hereditament were
occupied during that relevant period of vacancy by the owner.
Para 2 of
Schedule 1 (as amended) is as follows:
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;
(d) the hereditament is the subject of a
preservation order or an interim preservation notice under the Ancient Monument
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) 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.
The council
duly made a resolution under section 17(1) of the 1967 Act in consequence
whereof the provisions of Schedule 1 to the Act were at all material times
applicable in the council’s rating area.
The ‘relevant
hereditament’ is defined by para 15 of Schedule 1 as meaning:
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 to be used or intended for use for the
purposes of the building or part.
On November 22
1973 the Secretary of State for the Environment compiled a list of buildings of
special architectural or historic interest in which were included a number of
properties under the heading ‘Regent Street W1 (east side)’. In the list was an
entry ‘Numbers 172 to 206 (even)’. Accordingly, nos 200-202 Regent Street were
at all material times included in that list.
The position
then is that the council claim rates in respect of the entire premises from
February 1 1982 (being three months after the hereditament ceased to be
occupied) to March 31 1983, during which period the hereditament was unoccupied
and Debenhams were the owner. Debenhams resist the claim and rely on the
provisions of para 2(c) of Schedule 1 to the General Rate Act 1967 upon the
ground that at all material times nos 200-202 Regent Street were included in a
list compiled under section 54 of the Town and Country Planning Act 1971. That
contention failed before the magistrate but succeeded before the judge.
Para 2(c) of
Schedule 1 to the 1967 Act confers the exemption if ‘the hereditament is . . .
included in a list compiled or approved under section 54 of [the Town and
Country Planning Act 1971]’.
The
hereditament in respect of which Debenhams were liable to be assessed to rates,
and which was, as the magistrate found, included in the valuation list, was 200-202
Regent Street, 50-52 Kingly Street, and 27-28 Kingly Street. That was the
‘relevant hereditament’ referred to in para 1 of Schedule 1 and the
‘hereditament’ referred to in para 2 of Schedule 1.
The first
question is whether that hereditament was included in the list compiled under
section 54 of the Town and Country Planning Act 1971. The council answer that
the hereditament was not so included; only part of it was (namely 200-202
Regent Street and 50-52 Kingly Street). On that basis, say the council, the
case does not come within para 2(c) of Schedule 1. For that the council rely on
the decision of the Divisional Court in Providence Properties Ltd v Liverpool
City Council [1980] RA 189. The hereditament in that case consisted of
three warehouses some six storeys high, the two outer of which were linked to
the central warehouse by a single-storey building and a detached gateway
abutted by two gatehouses. Only the central warehouse together with the gates
and gatehouses were included in the section 54 list. The Divisional Court (Lord
Lane CJ and Boreham J) held that the hereditament was not exempted from rates
under para 2(c) of Schedule 1. Boreham J (with whose judgment the Lord Chief
Justice agreed) said, at p 193:
In my
judgment the meaning of paragraph 2(c) is clear. If Parliament had wished
paragraph 2(c) to apply to part of a hereditament, it could have said so and
said so very easily in the way counsel for the appellant demonstrated by the
inclusion of those few words. They were not included. In my judgment the
meaning is clear. One simply asks the question, what was the hereditament in
this case? Was that hereditament in the
list under section 54 of the Town and Country Planning Act 1971? The answer to that question seems to me to be
clear. That hereditament was not in that list. A bit of it was. That is not
enough.
In response to
that approach Debenhams submit three answers. The first is that, on the facts
of the present case, the whole of the rateable hereditament was included in the
section 54 list. The listed premises are 200-202 Regent Street. On the facts as
found by the magistrate it does not appear that, when the list was compiled, or
indeed at any material time, there was any means of distinguishing between
200-202 Regent Street and 50-52 Kingly Street. I would accept, therefore, that
50-52 Kingly Street could properly be regarded as included in the description
in the list. The same is not true of 27-28 Kingly Street. That property is on
the east side of Kingly Street and, though connected by the bridge and tunnel,
was at all times physically distinguishable from the rest of the premises
between Regent Street and the west side of Kingly Street. Debenhams contend
that what was listed was, in fact, Hamleys’ toy shop. I do not feel able to accept
that. Such a description cannot be extracted from the listed description
‘Numbers 172 to 206 Regent Street (east side)’. The list does, in fact, contain
some specific references to shops (for example, Peter Robinson’s and
Liberty’s), but the listing in the present case contains no such reference.
Debenhams next
(and principal) submission is based upon the provisions of section 54(9) of the
Town and Country Planning Act 1971; those provisions were not referred to in
the judgments in the Providence Properties case and Mr Horton doubts
whether he referred the court to them.
Section 54
subsections (1) and (9) of the Town and Country Planning Act 1971 are in the
following 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.
(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.
It is
submitted by Debenhams that the whole of the hereditament is to be treated as
being comprised in the list because the part of it not specifically referred to
in the listing (ie 27-28 Kingly Street) was:
(a) a structure ‘fixed’ by
the bridge to the building specifically included in the list.
and/or
(b) a structure forming part
of the land and comprised within the curtilage of the building specifically
referred to in the listing.
Debenhams rely
on the decision of this court in Attorney-General ex rel Sutcliffe and
Others v Calderdale Borough Council (1982) 46 P & CR 399, to
which I will refer later. The judge accepted that approach, holding that 27-28
Kingly Street was fixed to the rest of the property.
I will
consider first the general effect of section 54(9) of the 1971 Act. The
subsection starts with a definition of ‘listed building’ as meaning a building
which is for the time being included in a list compiled or approved by the
Secretary of State under section 54. Nos 200-202 Regent Street (including 50-52
Kingly Street) is such a building.
Section 54(9)
goes on then to provide that for the purposes of the provisions of the Act
related 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 result,
therefore, is that where a ‘structure’ is fixed to a building and that building
is for the time being included in a list compiled by the Secretary of State
under section 54, then the structure is, for the purposes of the provisions of
the Act relating to ‘listed buildings’ (and building preservation notices), to
be treated as part of the building to which it is fixed. The structure is
therefore, to that extent, to be treated as part of a building which is
included in the list.
The council’s
contention, however, is that section 54(9) has no relevance to the present
case. Debenhams, it is said, must show that the rateable hereditament is
included in a list compiled under section 54. The rateable hereditament (ie
200-202 Regent Street, 50-52 Kingly Street and 27-28 Kingly Street) is not so
included; only part of it is. Section 54(9), it is asserted, does not alter
that fact. The subsection does not provide that a structure which is fixed to
(or within the curtilage of) a building which is included in the list is to be
deemed for all purposes to be so included. The subsection merely says that for
the purposes of the 1971 Act dealing with listed buildings and building
preservation notices, the structure is to be treated as part of the building.
In resolving
this matter it is, I think, necessary to begin with the policy of para 2(c) of
Schedule 1 to the General Rate Act 1967. What is the reason for giving
exemption to a building included in the list of buildings of special
architectural or historic interest? It
must, in my view, be the fact that such buildings are subjected to a statutory
control which seriously affects the power of the owner to make full economic
use of them. Thus, by section 55(1) of the 1971 Act:
. . . if a
person executes or causes to be executed 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, and the works are not authorised under this Part of this Act, he
shall be guilty of an offence.
In general,
works to a listed building require the consent of the local planning authority
or the Secretary of State (section 55(2)).
So far as the
present law is concerned, the list derives entirely from the provisions of
section 54(1) of the 1971 Act. The purpose of the list is to impose on ‘listed
buildings’ the statutory control. If, therefore, a building is ‘a structure
fixed to’ a building which is itself included in the list compiled under
section 54(1), then for the purposes of the statutory control it is part of the
building included in the list. It is, in consequence, subjected to all the
restrictions imposed by the 1971 Act upon the demolition, alteration or
extension of buildings included in the list.
The council
say that while that is the position in law, it is, in practice, much easier to
obtain consent for works to a building which is brought into control by section
54(9) than it is for a building which is itself included in the list. That may
be so in some, cases but it is not necessarily so in all. For example, the
‘fixed’ building may be of some importance to the stability of the building
included in the list; or its alteration or demolition might cause damage to the
architectural features of the building so included. But, in any event, the
statutory requirements for consent to works to the ‘fixed’ building exists and
is a restriction upon the ordinary powers of the landowner. In the present
case, when the bridge was demolished in 1983, listed building consent had to be
(and was) obtained.
Against that
background, I return to the language of para 2(c) of Schedule 1 to the 1967
Act. 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’? In my opinion it can. I accept
that section 54(9) does not operate as a general deeming provision. But, for
the purposes for which the Secretary of State compiles the list of buildings of
special architectural or historic interest, the ‘fixed’ building is treated as
part of the listed building. And those purposes are, as it seems to me, the
basis of the policy of Parliament in granting the exemption in para 2(c) of
Schedule 1 to the General Rate Act. In those circumstances it is, in my
opinion, unreal to suppose that Parliament did not intend the ‘fixed’ building
to have the benefit of the para 2(c) exemption. As a matter of language that
conclusion, in my view, does not lead to any great difficulties in relation to
para 2(c). That paragraph refers to a building included in a list compiled
under section 54 of the 1971 Act. Section 54(1) directs the compilation of a
list ‘for the purposes of this Act’. Section 54(9) defines a listed building as
a building for the time being included in the list and then says that for the
purposes of the Act relating to listed buildings (ie buildings included in the
list) ‘fixed’ structures are to be treated as part of the building. They are
therefore, to that extent, to be treated as part of a building included in the list
and so included in the list themselves. The extent to which they are so treated
is very substantial in that it relates to the principal purposes of the
creation of the list and to the reasons for the grant of exemption in para
2(c).
It is said on
behalf of the council that we must have regard to the fact that para 2(c) as
originally enacted referred to the Town and Country Planning Act 1962, which
contained no provision corresponding to section 54(9) of the 1971 Act. That is
so, but what we have to construe is the amended statute, which in fact refers
to the 1971 Act.
There remains
the question whether 27-28 Kingly Street was a ‘structure fixed’ to the
remainder of the hereditament at all material times until the bridge was
demolished in March 1983. Nos 27-28 Kingly Street, in my view, plainly
constituted a ‘structure’ which was ‘fixed’ to the remainder of the rateable
hereditament by the bridge. In A-G ex rel Sutcliffe v Calderdale BC
(supra), there was a terrace of cottages, a mill and a bridge which linked
the two. In 1971 the mill was listed under section 54 of the 1971 Act. The
terrace was not included in the listing. ‘I have no doubt’ said Stephenson LJ
(who gave the leading judgment) at p 404 ‘that the linking bridge is fixed to
the mill, although Mr Macleod withdrew a concession that it was. It was
attached (on the other side) to No 1 and so to the terrace’. Accordingly the
Court of Appeal held that listed building consent was necessary to the
demolition of the terrace, though it was not itself included in the list. The
case was not concerned with the provisions of Schedule 1 to the General Rate
Act 1967.
So far as the
second limb of section 54(9) is concerned (ie ‘or forming part of the land and
comprised within the curtilage of a building’) it seems to me that, down to the
time when the bridge was demolished in March 1983, 27-28 Kingly Street formed
part of this curtilage of the larger building which was 200-202 Regent Street
and 50-52 Kingly Street. The premises were in single ownership and had long
been used as a single building and for the same purposes;
Kingly Street was really an annexe fixed to the rest of the hereditament.
It appears
from the case stated that the bridge was demolished so as to enable 27-28
Kingly Street to be sold separately. But during the short period in March 1983
between the demolition of the bridge and the end of March it was still owned by
Debenhams; it still formed part of the rateable hereditament and was
geographically close to the rest of the hereditament. I am not prepared to say
that it ceased to be within the curtilage of the rest during that short period.
I should add
this. It seems to me that, if the construction of para 2(c) and section 54(9)
which I have adopted is wrong, the very unsatisfactory result follows that
there will be no exemption for any part of the rateable hereditament even
though a substantial part of it is listed. The unit of rating is ‘the
hereditament or hereditaments comprising’ the property liable to be assessed to
rates (General Rate Act 1967, section 16). ‘Hereditament’ means ‘property which
is or may become liable to a rate, being a unit of such property which is, or
would fall to be, shown as a separate item in the valuation list’. Accordingly,
the ‘rateable hereditament’ and ‘the hereditament’ referred to in Schedule 1,
paras 1 and 2, is, in the present case, the entirety of the property (ie
200-202 Regent Street, 50-52 Kingly Street and 27-28 Kingly Street). That is
the unit appearing in the valuation list. And it is that unit which must be
shown to be included in the section 54 list in order to attract the exemption
in para 2(c). That provision says ‘the hereditament’ and not ‘the hereditament
or any part thereof’. On this aspect of the case I agree with the reasoning of
the Divisional Court in the Providence Properties case.
The same
considerations also, I think, dispose of the third argument advanced by
Debenhams in the present appeal, namely that the exemption is available for all
the buildings comprised in the rateable hereditament if any of the
buildings is a listed building.
Only buildings
can be listed. I say nothing about the position of a hereditament consisting of
a house or other building with a garden or other unbuilt-on land where the
house or building is listed.
For the
reasons which I have given I conclude that the whole of Debenhams’ rateable
hereditament is within the exemption in para 2(c) of Schedule 1 to the 1967
Act. I would dismiss the appeal.
NEILL and
RALPH GIBSON LJJ agreed that the appeal should be dismissed for the reasons
given by Fox LJ and did not add anything.
The appeal
was dismissed with costs. Leave to appeal to the House of Lords was refused,
but on May 8 1986 leave to appeal was granted by the House of Lords Appeal
Committee.
