by Martin Edwards
The publicity surrounding Peter Palumbo’s redevelopment proposals for the Mappin & Webb building at 1 Poultry, London EC2, serves as a reminder of how highly sensitive works to listed buildings can be and the importance of the special legislative regime that exists to protect them. A number of recent court decisions has underlined this and emphasised the need to take considerable care when carrying out works to listed buildings or dealing with their maintenance. The purpose of this article is to consider the impact of these cases. Some of the cases are notable in themselves for the facts behind them but, taken overall, they do illustrate that the courts are showing a willingness to ensure that the law adequately plays its part in preserving our architectural and historic heritage. The consequences of these decisions cannot be ignored by those involved with the listed buildings.
Strict liability
No review of recent cases could properly begin without mentioning the decision of the Divisional Court in R v Wells Street Metropolitan Stipendiary Magistrate, ex parte Westminster City Council [6] 3 All ER 4, which arose out of what may best be described as an unfortunate misunderstanding.
In this case a company owned the headlease of a Grade II listed building in Wimpole Street, London W1. After obtaining possession from various professional and business tenants with a view to completely restoring the building, the company, owing to various problems, found itself unable to carry this out and for a considerable period the building remained unoccupied. There were a number of break-ins and thefts in which various fixtures and fittings were taken, a position which was exacerbated when a fire broke out and the fire brigade smashed every door in the building in order to gain entry. As a temporary measure the company used the premises for the storage of furniture, but once the other storage space became available they decided to remove the furniture and gave verbal instructions to an independent contractor (trading under the glorious name of “Amazing Grates”) to “remove everything of value”. By this the company intended that only the furniture of value should be removed, but the contractor interpreted his instructions as meaning that he was also to remove fixtures and fittings of value.
The council’s historic buildings officer together with a police officer visited the premises and found the contractor in the process of taking away chimney pieces, panelled doors and staircase balustrading. As a result, both a director of the company and the independent contractor were prosecuted and both elected trial by jury. At the committal hearing, little of the prosecution evidence was challenged, but in respect of the company director it was successfully argued that there was no evidence that he had caused the alterations to the listed building. This was accepted and he was discharged. On behalf of the contractor it was submitted that section 55(1) of the Town and Country Planning Act 1971 (which provides that anyone executing or causing to be executed without first obtaining listed building consent any works for the demolition, alteration or extension of a listed building and which affects its character as a building of special architectural or historic interest is guilty of an offence) required mens rea and there was no evidence to suggest that he knew that the building was listed. This argument found favour with the magistrate and the contractor was also discharged.
The council appealed to the High Court. The point of law at issue was simple: did section 55(1) create an absolute offence or was mens rea necessary?
This question had not previously been before the courts, at least in relation to listed buildings, but in the case of Maidstone Borough Council v Mortimer [0] 3 All ER 552 it was decided that section 102(1) (which makes it an offence to cut down or wilfully destroy a tree which is the subject of a tree preservation order) was an offence of strict liability. In this case it was argued that the punishment for an offence under section 102(1) is nowhere near as severe as that for an offence under section 55(1), which can be punishable by imprisonment, and thus the Mortimer case should not be relied on. The court, however, held that the fact that an offence was punishable by imprisonment did not indicate that Parliament intended mens rea to be an essential ingredient of the offence.
The court then considered and accepted the test put forward by Lord Scarman in the Privy Council case of Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [5] AC 1 when he said:
In their Lordships’ opinion, the law relevant to this appeal may be stated in the following propositions (the formulation of which follows closely the written submission of the appellants’ counsel, which their Lordships gratefully acknowledge): (1) there is a presumption of law that mens rea is required before a person can be guilty of a criminal offence; (2) the presumption is particularly strong where the offence is “truly criminal” in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue; (5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.
The court held that the offence was one of strict liability and granted the application for judicial review. It can be seen that in coming to its decision the court regarded the preservation of listed buildings as an issue of social concern, bringing the offence within the fourth test.
The result of this case is that it is now easier for local planning authorities to prosecute where unauthorised works have been carried out to a listed building, as they do not have to show that the person who executed the works knew that the building was listed. The court considered that any fears of oppressive prosecution could be allayed by the discretion given to local planning authorities as to whether to prosecute and also in the court’s power to refrain from punishment by either fine or imprisonment in appropriate cases.
This decision does create problems for those independent contractors engaged in carrying out works to listed buildings. The owners will surely be aware that the building is listed, but an independent contractor may well not. The first question that any contractor should consider is whether the building is listed and, if there is any doubt, inquiries should be made with the local planning authority. If it is, and no listed building consent has been obtained, then a further question needs to be considered, ie whether the works are such that they will affect the “character” of the building as a building of special architectural or historic interest. That is a difficult question, the answer to which must surely involve an element of subjective opinion, and the only way to be safe is to apply for listed building consent, which will be time-consuming and, frequently, impracticable.
Coloured judgment?
The issue of whether repainting the exterior of a listed building in such a manner that its character as a building of special architectural or historic interest is affected requires listed building consent was considered by the High Court in Windsor and Maidenhead Royal Borough Council v The Secretary of State for the Environment [8] 2 PLR 17.
In this case, a listed building enforcement notice was served on the owners of some Georgian houses forming part of a terrace in Windsor which were listed as Grade II buildings with a group value. The notice asserted that there had been a contravention of section 55(1) as the exterior of the buildings had been painted in colours of deep pink with black detailing on, among other parts, pilasters, string course, window cills, window frames, the base area of the main wall and the front elevation and porch.
An appeal against the notice was determined by the written representations method. The inspector appointed considered in his report that the colours used did affect the appearance of the buildings and their relationship with other properties in the group, which were painted white or a pastel colour, none of them having their architectural mouldings or features picked out in a contrasting colour. In his opinion, the character of the appeal buildings had been altered to a point which constituted a contravention of section 55(1). He recommended that the notice should be upheld, but the Secretary of State took a different view and refused to uphold the notice. He did not dispute the advice given by the inspector that the character of the building had been changed by the new colouring but held that, as the facade of the building was already painted, the action of repainting did not constitute works of alteration.
The council appealed to the High Court.
The court noted that in 1972 the Secretary of State had reached the conclusion that the repainting of a door in the Royal Crescent, Bath, was capable of being the subject of a listed building enforcement notice but that the attitude of the department had now changed. This could be seen in the provisions of para 93 of Circular 8/87, which echoed the comments of the Secretary of State in his decision letter in this case. In particular, the circular stated: “If, however, the facade of the building is already painted, it is considered that the action of repainting cannot be said to constitute works of alteration and in such circumstances, consent is not required.” It went on to say that every effort should be made to encourage owners to use colours appropriate to the character of the building and its setting.
However, Mann J held that, having regard to the meaning in ordinary language of the word “alteration” and to the purpose of section 55(1), he was justified in concluding that repainting was capable of being an alteration. Furthermore, in any case the deciding question would be whether the repainting affected the character of the building. Clearly there would be cases where the painting in unsuitable colours of, for example, Georgian stucco would produce the most unfortunate aesthetic result. He allowed the appeal and remitted the matter to the Secretary of State with a direction to dismiss the appeal against the enforcement notice.
As a consequence of this case the department has now issued Circular 18/88, Painting of Listed Buildings, which substitutes a new para 93 in Circular 8/87 to reflect the High Court’s decision.
Taking things too far?
Undoubtedly the most interesting of the recent cases, from both the factual and the legal points of view, must be R v Leominster District Council, ex parte Antique Country Buildings Ltd and Others [8] 2 PLR 23. The use by Mann J, throughout his judgment of the phrase “it is, or was” when describing the building in question gives a clue to the unusual facts behind this case.
At Stagbatch Farm near Leominster was a barn, listed as Grade II, which was erected some time prior to 1620 and was of a timber-frame construction held together with wooden pegs. In 1985 it was dismantled and the timbers sold to Antique Country Buildings Ltd, who arranged for them to be exported to the United States of America, where they could be reassembled. Some 70% to 80% of the timbers were in a condition which rendered re-erection possible. All that was left on the land at Stagbatch Farm were the foundations and footings. On an application for an export licence for the timbers of two old barns, it was discovered that the barn at Stagbatch had disappeared although the original owner maintained that it had blown down and the timbers sold. Once the dismantling of the barn came to the attention of Leominster District Council they took action and on August 5 1986 issued a writ against Antique Country Buildings Ltd and a firm of shippers, seeking an injunction preventing the removal of the timbers from the jurisdiction. They were granted an injunction ex parte and this was renewed after an inter partes hearing by Hoffman J on August 11 (a report of that hearing is to be found in [7] JPL 350).
On August 8 1986, the council issued a listed building enforcement notice. An appeal was lodged and the public local inquiry held, following which the inspector reported to the Secretary of State, who dismissed the appeals but amended the enforcement notices (the amendments were not challenged in the court proceedings that followed).
Mann J considered two main questions:
1 Does a planning authority have the power to serve a listed building enforcement notice despite the fact that the building to which it relates has been demolished?
2 Is a person capable of being regarded as the owner of the listed building when he is the owner of (a) all of the extant parts of a building which has been demolished or (b) some of the extant parts of a building which has been demolished?
In respect of the first question, Mann J could not see why demolition should not be either partial or total. The Act drew no distinction between the two and he felt that it would be absurd to do so. He drew comfort from the comments of Hoffmann J in the inter partes injunction hearing:
I can quite see that in some contexts, perhaps in many contexts, a heap of timbers would not be described as a building, but the question in each case is one of context. The relevant context here is a provision in the Town and Country Planning Act which says that if in contravention of listed building control someone has carried out works of demolition to a listed building, the planning authority may require him to take steps for restoring the building to its former state. When it says “restoring the building to its former state”, does that exclude cases in which the demolition has been so complete that there is nothing left which, in other contexts, one might ordinarily describe as a building? If this is the case, the result from the point of view of common sense would be very surprising. It would mean that a person who had wrongfully commenced to demolish a listed building but had not got so far as to reduce it to a total ruin could be required to restore it to a former state. If, however, the demolition had proceeded so far that there was nothing which could any longer be described (without regard to context) as a building, the wrongdoer might be prosecuted but could no longer be required to take any remedial steps. This, it must be noted, is not something that would depend on the practicalities of taking remedial steps. It might be just as easy or just as difficult to restore the partly demolished building as the wholly demolished building. The distinction would be purely semantic, namely what was left could be described contextually as a building or not. If that is the law, then persons seeking to make a profit by the dismantling of listed buildings would be well advised to dismantle them as quickly and thoroughly as possible before the local planning authority can get wind of what they are up to. Once the dismantling had been completed, they would be outside the scope of the powers of the authority.
I do not accept that the Act requires me to make such a silly semantic distinction. It seems to me in the context of section 96, the word “building” is perfectly capable of meaning something which had been a listed building but which had since been demolished.
Consequently, Mann J decided that a demolished listed building was none the less still a “building”. He did point out, however, that an enforcement notice can only require “restoration”, therefore the extent of the demolition may be important. If there is only rubble or ash remaining, eg the timbers had been burned, then mere replication would be possible and he considered that a requirement to “restore” could not extend to the construction of a replica. However, if the components of the building are extant, then restoration would be possible. It was not necessary for all the components to be extant; only sufficient of them to justify what is describable as “restoration”. It would be a matter of fact and degree; in this case 70% to 80% of the structural timbers were extant and thus the planning authority were entitled to issue an enforcement notice requiring restoration. The point was made that an enforcement notice had to be served on “the occupier” of the building and that it could be argued that here could be no occupier of the disassembled parts of the building. That argument did not find favour and Mann J held that the requirement must be read as if it were subject to the qualification “if any” because many listed buildings either have or can have no occupier: for instance, a market cross or a statue.
On the question of whether the owners of the disassembled parts could be considered to be the owners of a listed building, Mann J succinctly summed this up as “he who owns the parts owns the building”. He went on to say that any other conclusion would allow an evaporation of the built environment depending on whether or not the owner of the site disposed of the re-erectable remnants. The parts would have to be fairly describable as “the building”. For example, ownership of a single block from the previous London Bridge would not in ordinary language entitle the owner to describe himself as the owner of London Bridge but, as in this case, ownership of 70% to 80% would. He thus concluded that Stagbatch Barn was a building and it did not lose its character by its dismemberment.
This decision touches on a number of points. It should not be forgotten that section 55(1) has been extended to include the unauthorised demolition of unlisted buildings in conservation areas by virtue of the Town and Country Planning (Listed Buildings and Buildings in Conservation Areas) Regulations 1987 (SI 1987 no 349). It is now clear that a building which has been demolished can be the subject of a listed building enforcement notice provided that there is sufficient material remaining to permit restoration. Therefore anyone wishing to escape the consequences of a listed building enforcement notice would need not only to demolish the building but also to destroy a not insignificant part of its components. However, they would still be liable to prosecution and in those circumstances a hefty fine should be expected. While this decision can apply to unlisted buildings in conservation areas, it is submitted that it would be unusual for a local planning authority to serve an enforcement notice requiring the reconstruction of the building, as the rationale behind the conservation area consent procedure is not to protect individual buildings as such but rather to protect the overall amenity and character of the area by controlling demolition so that unlisted buildings are demolished only when full planning permission has been obtained for a suitable replacement building.
Preservation or restoration?
So far the cases have been concerned with works carried out to listed buildings, be they works of demolition or alteration, but the case of Robbins v Secretary of State for the Environment [8] 34 EG 59 illustrates that the mere ownership of a listed building carries with it the obligation to preserve. Anyone reading the “Piloti” column in Private Eye will be well aware of the not infrequently used tactic of purchasing a listed building and then allowing the ravages of time and the weather to destroy the building, thus freeing the land for development. This case is a timely reminder that powers exist to prevent this happening; when exercised, they can be used with a considerable degree of success.
Since 1969 Mr Robbins had owned and occupied a windmill with an adjoining house in Kent. In 1951 the windmill had been listed Grade II and in 1985 English Heritage considered it to be of outstanding architectural or historic interest. It was built in 1868 and last worked in 1938. When Mr Robbins bought the mill, outline planning permission was given for conversion to residential use. At that time, the condition of the mill had deteriorated from that at the time of its listing. Mr Robbins adapted the mill and lived there with his family. Over the years the condition deteriorated further and concern grew locally. In October 1983 Ashford Borough Council served a repairs notice under the provisions of section 115 of the Act. Section 114 enables the local planning authority to acquire compulsorily a listed building which is in need of repair. However, the procedures are designed to encourage preservation and therefore it is a pre-requisite of the compulsory purchase procedure that a repairs notice be served under section 115 at least two months before the compulsory purchase procedure is started. The notice must specify the works which the local planning authority consider reasonably necessary for the proper preservation of the building and also the effect of the compulsory purchase and compensation provisions of the Act. If, after the two months, it appears that reasonable steps are not being taken for properly preserving the building, the local planning authority can then serve a compulsory purchase order. Confirmation of the order by the Secretary of State is required.
On December 15 1983, the local planning authority resolved to proceed with the compulsory purchase of the windmill and the order was served on October 15 1984. A local inquiry was held in December 1985 and the order was confirmed by the Secretary of State in December 1986. In November 1987 the Secretary of State’s decision was unsuccessfully challenged in the High Court, following which Mr Robbins appealed to the Court of Appeal.
The basis of the appeal was that, on considering the inspector’s report, the Secretary of State had found that some of the works included in the repairs notice were appropriate to the restoration of the building rather than merely its preservation. However, the Secretary of State in his decision letter expressed the view “that the question of whether works are properly considered to be reasonably necessary for the proper preservation of the building is bound, to a certain extent, to be one of fact and degree”.
The first line of argument was that works for the preservation of a building were works necessary to prevent the building deteriorating further or falling into further disrepair, but they did not include works of restoration. In other words, a notice could not include works which were not necessary to preserve the building in its condition at the date of the service of the notice. The court did not accept this argument and felt that it was unnecessary and inappropriate to say that the building was to be restored to the condition it was in at some particular earlier date. Whether the works included the replacement of parts of the building which had been removed at the date of the notice was indeed a matter of fact and degree for the local planning authority when serving the notice and for the Secretary of State in deciding whether to confirm the compulsory purchase order. It was also argued that the inclusion of items of restoration rendered the repairs notice invalid. This argument found no favour with the court, which held that the decision as to what items to include in the repairs notice was one of discretion for the local planning authority and that even if they erred in some respect in exercising their discretion, that would not affect the validity of the notice unless, of course, the local planning authority were completely mistaken as to the nature of their powers or acted irrationally or took into account an irrelevant consideration which would invalidate the notice on the Wednesbury grounds [8] 1 KB 223.
It is clear, therefore, that if a repairs notice requires works which will restore a building to the condition it was before the date of service of the notice it will be valid, but the case leaves open the question of whether the local planning authority would be entitled to acquire the building compulsorily if the building had been “preserved” by being restored to the condition it was at the date of service of the notice but the other works (the works of “restoration”) had not been carried out.
Thus works of preservation can include works of restoration and the question of when this will be appropriate is one of fact and degree in each case. By purchasing a listed building which is in a poor state of repair, it may no longer be adequate merely to preserve it from future deterioration and no one should consider purchasing without first having available suitable funds to carry out restoration works.
This position is illustrated by the decision of the Court of Appeal in Rolf v North Shropshire District Council [8] JPL 103. Pell Wall Hall, a listed building near Market Drayton, had been owned by Mr Rolf since 1964. After 1966 its condition deteriorated and a closing order was made in 1972, but this order was quashed on appeal to the county court after certain undertakings had been given by Mr Rolf. Outline planning permission was granted in 1974 for the conversion of the Hall into four dwellings but was never implemented. In 1975 an application was made for the erection of a dwelling-house in the grounds of the Hall, but the application was refused and a subsequent appeal dismissed. In 1977 an application was made to demolish the Hall. Permission was refused and Mr Rolf appealed. A public inquiry was held and the appeal was dismissed. Another closing order was made in 1978 and on this occasion the appeal to the county court was dismissed. Mr Rolf made a second application to demolish the Hall in August 1982 and he subsequently appealed the non-determination, following which another public inquiry was held and his appeal dismissed. A third application was made in August 1984 to demolish the Hall and Mr Rolf indicated that he wished to gut the building by controlled burning.
In September 1984, the local planning authority served a repairs notice under section 115. No works were carried out and a compulsory purchase order was made. Section 114(6) provides a mechanism for appeal to the magistrates’ court for an order staying the compulsory purchase proceedings if the court is satisfied that reasonable steps have been taken for properly preserving the building. Mr Rolf unsuccessfully appealed to the magistrates and he appealed to the Crown Court.
The local planning authority then invoked the procedure under section 117(1), which allows the inclusion within a compulsory purchase order of an application for a direction of minimum compensation. This is designed to penalise owners of listed buildings who deliberately allow them to fall into disrepair in order to justify demolition and development of the site. The effect of a direction of minimum compensation is to limit the compensation payable for the building by requiring it to be assessed on the assumption that neither planning permission nor listed building consent would be granted for any works except to restore the building into a proper state of repair and maintain it. The Act provides for an appeal by way of an application to the magistrates for an order that such a direction should not be included in the compulsory purchase order as confirmed by the Secretary of State. Mr Rolf duly applied to the magistrates, who again refused his application, and he again appealed to the Crown Court. Both appeals came before the Crown Court, which, after hearing all the evidence afresh and making findings of fact, found that the condition of the Hall had seriously deteriorated and rejected the appeals.
After an unsuccessful appeal to the High Court Mr Rolf appealed to the Court of Appeal. Two issues were raised by the appeal: did the means of the owner of a listed building have to be taken into account in specifying the works considered to be reasonably necessary for the proper preservation of the building; and was a local planning authority entitled to make a compulsory purchase order for a listed building on the basis of a proposed disposal to another body?
In answer to the first question, Stephen Brown LJ held that Russel J in the High Court had correctly concluded that section 115 was designed to ensure the preservation of buildings and did not contain any words which gave rise to an inference that the means of the owner or occupier of the listed building are to be taken into account by the planning authority when considering the contents of a repairs notice.
The court then considered that section 126 of the Act, which allows a local authority acquiring a listed building to make such arrangements for its management or useful disposal as they consider appropriate for the purposes of its preservation, clearly contemplated this situation. It therefore held that the local planning authority were entitled to make the compulsory purchase order for a listed building on the basis of a proposed immediate disposal to another body, which, in this case, was a charitable trust.
Conclusion
There is discernible through all these cases a consistent theme, namely, that listed buildings demand careful and sensitive treatment. There exists a body of statute and case law which is designed to ensure that listed buildings are accorded special and favourable treatment. From a local planning authority’s point of view their powers are specific and highly effective (when used). For owners or those employed to carry out works to listed buildings the message is clear; care must be taken. If there is any doubt as to whether the building is listed or if the proposed works need consent, then it is better to err on the side of caution. Anyone considering investing in a listed building should take a hard look at the financial consequences of ownership. To do otherwise could be costly.