Listed building — Whether removal of chimney breasts and consequential works demolition or alterations — Whether compensation payable for refusal of listed building consent
On June 4 1991
the Secretary of State for the Environment refused listed building consent to
the appellant company to remove certain internal chimney breasts and extend the
adjoining floors into the space provided in respect of a Grade II listed
building. The appellant claimed compensation under section 27 of the Planning
(Listed Buildings and Conservation Areas) Act 1990 on the grounds that listed
building consent had been refused to alter or extend a listed building. At the
hearing of a preliminary issue before the Lands Tribunal, the member decided
that the application had been for alterations, for which compensation was
payable on a refusal, and not for demolition, for which no compensation was
payable. The Court of Appeal allowed the council’s appeal in part deciding that
the work was of demolition and not of alteration: [1995] 1 PLR 72. The company
appealed to the House of Lords.
restored.
An entry in
the list of ‘listed buildings’ may refer to a whole building or part of a
building according to what is necessary to achieve the purposes of the Planning
(Listed Buildings and Conservation Areas) Act 1990. There is no direction in
section 1(5) to the effect that wherever the expression ‘listed building’ is
used the words ‘any part of a listed building’ may be substituted for that
expression so that the controls of the Act may be applied separately to each
part as well as to the whole building. The word ‘building’ does not have the
extended meaning of ‘building or any part of it’ when it is used in the
expression ‘listed building’. There can be no question of the word ‘demolition’
within the meaning of the Act being applied to works of alteration which affect
only part of a listed building. Works which involve the pulling down and
breaking up of part of the building, falling short of its destruction, will
fall within the expression ‘alteration’. The removal of the chimney breasts
were works of alteration and not works of demolition.
Lord Griffiths
dissented.
to in the opinions
Customs
& Excise Commissioners v Viva Gas Appliances
Ltd [1983] 1 WLR 1445; [1984] 1 All ER 112; [1983] STC 819, HL
Debenhams
plc v Westminster City Council [1987] AC
396; [1986] 3 WLR 1063; [1987] 1 All ER 51; [1986] 85 LGR 190; [1986] RA 249;
[1987] 1 EGLR 248, HL
Furniss v Dawson [1984] AC 474; [1984] 2 WLR 226; [1984] 1 All ER
530, HL
London
County Council v Marks & Spencer Ltd
[1953] AC 535; [1953] 2 WLR 932; [1953] 1 All ER 1095; (1953) 3 P&CR 409;
51 LGR 329; 161 EG 436, HL
R v North Hertfordshire District Council, ex parte Sullivan
[1981] JPL 752
Appeal against
the decision of Court of Appeal
This was an
appeal by Shimizu (UK) Ltd against the decision of the Court of Appeal, which
allowed the appeal of the appellants, Westminster City Council, from the Lands
Tribunal on a preliminary issue in a reference to determine the amount of
compensation payable on a claim by the respondents, Shimizu (UK) Ltd, under
section 27 of the Planning (Listed Buildings and Conservation Areas) Act 1990.
Cherryman QC and David Holgate (instructed by Freshfields) appeared for the
appellants, Shimizu UK Ltd.
Barnes QC and Viscount Dilhorne (instructed by the solicitor to Westminster
City Council) appeared for the respondent council.
following opinions were delivered.
LORD
BROWNE-WILKINSON: My lords, I have had the benefit
of reading in draft the speech to be given by my noble and learned friend Lord
Hope of Craighead. I agree with it and for the reasons which he gives I would
allow this appeal and restore the decision of the Lands Tribunal.
LORD
GRIFFITHS: My lords, I have the misfortune to
differ from the majority of your lordships and will therefore express my
opinion shortly. I gratefully adopt the history and citation of the relevant
sections of the Planning (Listed Buildings and Conservation Areas) Act 1990 set
out in the speech of my noble and learned friend Lord Hope of Craighead.
The Prudential
Assurance Co owned a block of buildings on the corner of Bond Street and
Piccadilly. Part of the block, known as Qantas House, was a listed building.
The obvious reason for the listing was the elegance of the facade of this
building; a less obvious reason was apparently the importance of the chimney
breasts and chimney stacks contiguous with the facade.
On July 6 1988
the Prudential obtained listed building consent and planning permission to
demolish the entire block with the exception of the and the chimney breasts and
chimney stacks of Qantas House. If the Prudential had applied to demolish the
whole building including the chimney stacks and chimney breasts retaining only
the facade and this had been refused they would not have been entitled to
compensation. The Prudential might well have wished for permission to demolish
the chimney stacks and breasts because by doing so extra floorspace would be
available in the new building to be erected behind the facade. However although
refusal would have resulted in loss of valuable floorspace they would not have
been entitled to compensation.
The building
then changed hands and the appellants became the owners. The appellants
proceeded to demolish the building in accordance with the listed building
consent and by June 1990 all that remained were the facade and the chimney
breasts and chimney stacks supported by temporary steel work. The appellants
then applied for listed building consent to demolish the internal chimney
breasts, which was refused on appeal by the Secretary of State for the
Environment. The reason why the appellants wished to demolish the chimney breasts
was to provide more floorspace, which they value at £1,800,000.
In order to
entitle themselves to claim this £1,800,000 of compensation the appellants
argue that the demolition of the chimney breasts and the infilling of the voids
thereby created in the floors should be regarded not as a demolition of part of
a listed building, but as an alteration to a listed building the refusal of
which entitles them to compensation of £1,800,000.
Demolition and
alteration in the context of this Act are overlapping concepts which must be
applied with commonsense to the facts of each particular case. In each case it
will be a question of fact whether the work in question is to be regarded as
demolition or alteration, and it will generally be inappropriate for an appellate
court to interfere with the finding of fact of the tribunal. In this case,
however, I am unable to accept the finding of the tribunal that the removal of
the chimney breasts was an alteration rather than a demolition.
If the chimney
breasts had been removed as part of the original site clearance they would
unarguably have been ‘demolished’. If the appellants had been refused leave to
demolish them at that stage, as events prove they would have been, the
appellants would have been entitled to no compensation, even though the only
reason for wishing to demolish them would be to increase floorspace to the
value of £1,800,000. Now for the same reason, extra floorspace, the appellants
wish to remove the chimney stacks at a later stage of the construction. In my
view, it is divorced from reality to regard what would have been demolition in
the original site clearance as converted to an ‘alteration’ if carried out at a
later stage.
I would stress
that there is no alteration to the new building that was not necessarily
involved in the demolition of the chimney breasts, namely extending the floor
to the facade to cover the voids left by demolition of the chimney breasts.
Test the
matter this way. The appellants acquired the building on November 2 1989 before
any demolition had commenced. They could before starting demolition have
applied for the planning consent to be varied to enable them to demolish the
chimney breasts. This we know would have been refused. The appellants would
have been thereby deprived of additional floorspace, but would not have been
entitled to compensation.
In fact they
chose to demolish the building and then to apply to demolish the chimney
breasts. And it is said that by making the application later rather than
earlier they turn demolition into alteration and hey presto are entitled to
£1,800,000. My lords, that does not seem
of the demolition of the old listed building whether it took place before or
during the construction of the new building and I would dismiss the appeal.
The view I
take does not depend on the construction of ‘listed building’. But like Lord
Cooke I am not persuaded that the statutory definition of ‘building’ should be
excluded from the phrase ‘listed building’. I certainly would not wish to
decide the point without hearing argument from English Heritage and other
bodies likely to be affected by a fundamental change to the basis upon which
the legislation has hitherto been administered.
LORD LLOYD
OF BERWICK: My lords, I have had the benefit of
reading in draft the speech to be given by my noble and learned friend Lord
Hope of Craighead. I agree with it and for the reasons which he gives, I, too,
would allow this appeal and restore the decision of the Lands Tribunal.
LORD COOKE
OF THORNDON: My lords, the appellants, having
become the owners of the listed building then known as Qantas House, on the
western corner of Piccadilly and Old Bond Street, wished to enlarge the
floorspace by removing old chimney breasts, extending the existing flooring and
making it load bearing for the support of the chimney stacks. Listed building
consent under the Planning (Listed Buildings and Conservation Areas) Act 1990
was sought, but refused because the chimney breasts were considered of special
architectural or historical interest. The application had been made in June
1990 and subsequently amended.
Section 27 of
the Act of 1990 made the provision for compensation on which this appeal turns.
The section was repealed in 1991 in relation to applications for listed
building consent made on or after November 16 1990, but remains in force for
the purposes of the appellants’ claim to compensation.
Prima facie the appellant is entitled to compensation, as each of the three
conditions in section 27(1) is satisfied. The application can naturally be seen
as being in essence for the alteration of a listed building. This is the only
point in contention. It is common ground that the works do not constitute
development and that the Secretary of State has refused consent.
The policy
embodied in section 27 appears to have been in part that applicants could not
obtain compensation for mere refusal of consent to demolition. That is readily
intelligible. It was for the refusal of consent to the constructional work of
alteration or extension that compensation was to be available. Subject to the de
minimis principle, it seems to me reasonably clear on the natural and
ordinary reading of the section that an applicant refused permission under the
Act to carry out such work of construction had a valid claim to compensation. A
refusal would normally be for the reason that the project would involve the
demolition or impairment of, or a threat to, features of special architectural
or historic interest; but such reasons, while explaining the refusal, did not
eliminate the former right of compensation. There was nothing in section 27 to
cut down the meaning of ‘alteration or extension’.
On that short
ground I would allow the appeal and restore the preliminary decision of the
Lands Tribunal.
My lords, I
must own to experiencing some difficulty in adopting in the route to that
result an interpretation which involves treating the expression ‘listed
building’ in sections 7 and 8 and elsewhere as not including part of a listed
building. I should have thought that, in combination, the relevant definitions
in section 91(1) and (2) of the Planning (Listed Buildings and Conservation
Areas) Act 1990 and section 336 of the Town and Country Planning Act 1990 have
the prima facie meaning that ‘listed building’ includes a part thereof;
and it is at least doubtful whether the various reasons which can be put
forward to the contrary are strong enough to enable one to say that the context
requires the apparent combined effect of the definitions to be rejected.
Merely
arguable suggestions, or a limited degree of surplusage (possibly for clarity),
seem grounds too slight to justify such a rejection, as does the fact that the
discretionary powers in section 17(3) to impose a condition relating to works
on ‘the site’ could not be exercised if there were no site. On the other hand,
if a proposed alteration or extension will involve demolition of a part of a
listed building it is understandable, albeit sometimes no doubt inconvenient,
that notice of the proposal should be required to be given to the Royal
Commission under section 8(2). Moreover, the government departments concerned
in the administration of the Act, the member of the Lands Tribunal, the Court
of Appeal and a High Court judge, and also perhaps learned counsel who appeared
before your lordships, had all understood the definitions to apply and so had
regarded ‘listed building’ as including part thereof.
In these
circumstances it does not seem to me easy to say that the context speaks with
such clarity as to require a different meaning. In general those who draft
legislation and those who are affected by it are entitled to assume that the
courts will apply apparently relevant definitions unless they are clearly excluded.
But, on the view which I have taken, a definite opinion on the point as to
demolition of part of a listed building need not be expressed.
For the reason
that the claim to compensation fell within section 27, I, too, would allow this
appeal.
LORD HOPE
OF CRAIGHEAD: My lords, the question at issue in
this case is whether the appellants’ application for listed building consent
for the removal of certain structures within a listed building was an
application for the alteration or extension of that building within the meaning
of section 27(1)(a) of the Planning (Listed Buildings and Conservation Areas)
Act 1990. If it was, the appellants are entitled under section 27(2) to
compensation from the respondents, who are the local planning authority, as
listed building consent for the removal of these structures was refused.
Section 27 of the 1990 Act was repealed by section 84(6) of and Schedule 19 to
the Planning and Compensation Act 1991, so compensation under that section for
the refusal of listed building consent is no longer available. But it will be
necessary in order to decide this
of the legislation relating to the control of listed buildings.
Facts
The appellants
are the owners of a site on the corner of Old Bond Street and Piccadilly in
London. The site extends from 56–60 Piccadilly to 45–50 Old Bond Street. The
building at 56–60 Piccadilly and 48–50 Old Bond Street, which was known
originally as ‘The Corner’ and more recently as Qantas House, is a listed
building. The remainder of the site at 45, 46 and 47 Old Bond Street is not
listed. The building, which is listed, comprises a corner block of offices and
shops. It is regarded as a fine example of the Edwardian Baroque with Dutch
influences. It was erected in 1905, to a design by Herbert Read and Robert
Faulkner Macdonald, for Callard Stewart & Watt, who operated tea rooms
popular with visitors to the Royal Academy. From the 1960s it was occupied by
Qantas Airways, who carried out various works of modernisation and alteration
to the interior and significant works of alteration to the ground-floor
frontages.
On July 6 1988
Prudential Assurance, who then owned the site, were granted listed building
consent and planning permission for the demolition of everything except the
facades facing Piccadilly and Old Bond Street and the chimney breasts and
chimney stacks of the listed building, and for the redevelopment of the whole
site to provide shops, a wine bar and restaurant and offices. On November 2
1989 the appellants became the freehold owners of the site. Demolition began in
March 1990. By June 1990 the building consisted only of the facades, chimney
breasts and chimney stacks supported by temporary steelwork.
On June 22
1990 the appellants applied to the respondents for listed building consent for
the removal of the chimney breasts at first, second, third and fourth-floor
levels behind the Old Bond Street. On July 2 1990 the application was amended
to include the chimney breasts at fifth-floor level. On August 3 1990 a further
amendment was made to the application to include temporary and permanent
support to the chimney stacks. The respondents failed to determine the
application within the statutory eight-week period. The appellants then
appealed against the deemed refusal to the Secretary of State of the
Environment. On June 4 1991, after considering representations made by the
appellants, by the respondents and by English Heritage, the Secretary of
State’s inspector dismissed the appeal. By that date the approved scheme of
redevelopment was at an advanced stage. Although the new fabric was incomplete
internally, the roof and all the floors were in place and the temporary
steelwork within the building had all been removed.
A dispute then
arose between the appellants and the respondents as to whether the appellants
were entitled to compensation for the refusal of listed building consent for
the removal of the internal chimney breasts. The appellants referred their
claim to the Lands Tribunal. On July 8 1992 it was ordered that the following
preliminary issues be determined at a preliminary hearing on a date to be
fixed:
(a)
Whether the works which were the subject matter of the application for listed
building consent which was refused by the Secretary of State for the
Environment in his decision letter dated 4 June 1991 constitute alterations to
or extensions of a listed building under section 27(1)(a) of the Planning
(Listed Buildings and Conservation Areas) Act 1990, with the result that
compensation is accordingly payable by the Compensating Authority to the
Claimant;
(b) If
compensation is payable, the date at which the amount of compensation is to be
assessed.
On May 21 1993
the Lands Tribunal determined the first preliminary issue in the appellants’
favour. In respect of the second preliminary issue it was agreed that the
relevant date for the assessment of the amount of compensation was June 4 1991.
The issue which
the member was asked to decide was one of fact, namely whether the removal of
the chimney breasts constituted the demolition or the alteration of a listed
building within the meaning of the Act. It was accepted that, if their removal
was an alteration of the listed building, compensation under section 27 would
be payable. This was because subsection (1)(a) of that section provided that
the section was to have effect where ‘an application is made for listed
building consent for the alteration or extension of a listed building’. It was
also accepted that if their removal amounted to the demolition of a listed
building or part of a listed building, compensation under that section would
not be payable. After reviewing the facts which had been established by the
evidence, the member (Mr T Hoyes Esq FRICS) reached the conclusion that the
works constituted an alteration to a listed building rather than the demolition
of a part of a listed building. The respondents then appealed by way of case
stated to the Court of Appeal.
On December 20
1994 the Court of Appeal (Millett LJ and Sir Ralph Gibson, Russell LJ
dissenting) allowed the appeal and set aside the decision of the Lands
Tribunal. In his dissenting judgment Russell LJ said that the question whether
a particular activity was ‘demolition’ or ‘alteration’ of a building was
essentially a question of fact to be determined in the light of all the
relevant circumstances, that the court should not interfere in the finding of
the Lands Tribunal if the member was entitled on the material before him to
reach the conclusion that he did and that, as he was entitled to reach that
conclusion, his decision should not be disturbed. The majority reached the
opposite conclusion after a careful review of the relevant provisions of the
Act. They held that, when section 27(1)(a) referred to ‘an application is made
for … consent for the alteration … of a listed building’, the words in their
context did not include an application for consent for works which consisted of
or included demolition of part of a building. In their view, the concepts of
‘demolition’ and ‘alteration’ were mutually exclusive, to the extent of
precluding the demolition of a part of the building from amounting to an
alteration of the whole. Millett LJ made it clear that he reached this decision
with reluctance and regret, but he said that he was persuaded that the opposite
view could not be maintained in view of the provisions of
of alteration or extension, on the one hand, and works of demolition on the
other.
It should be
noted that the discussion in the Court of Appeal was conducted throughout on
the assumption that the statutory definition of the word ‘building’ in section
336(1) of the Town and Country Planning Act 1990, which is extended to the
Planning (Listed Buildings and Conservation Areas) Act 1990 by section 91(2) of
that Act — namely that the expression ‘building’, except in so far as the
context otherwise requires, includes ‘any part of a building’ — applies to the
word ‘building’ where it appears in the phrase ‘listed building’ as used in the
relevant sections of the Listed Buildings and Conservation Areas Act. It was
assumed not only that the expression ‘listed building’ includes any part of a
listed building whenever that expression is used in the Act, but also that the
system of control which the Act provides can be applied to any part of the
listed building in the same way as it applies to the whole.
History of
the legislation
Special
building controls in respect of buildings of special architectural or historic
interest have formed part of the legislation relating to town and country
planning since the 1930s. They were first introduced by section 17 of the Town
and Country Planning Act 1932 and were extended by sections 42 and 43 of the
Town and Country Planning Act 1944. The provisions of the 1932 and 1944 Acts
were replaced by sections 29 and 30 of the Town and Country Planning Act 1947.
In its
original form the mechanism which was available for the preservation of these
buildings was an order known as a building preservation order. The effect of an
order when made was to prohibit the demolition, alteration or extension of the
building without the consent of the local authority. The expression ‘listed
building’ was not used, but section 30 of the 1947 Act made provision for the
compiling by the minister of lists of buildings of special architectural or
historic interest. Subsection (6) of that section provided that, so long as any
building was included in any such list, no person was to 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’ notice had been given in writing of the
proposed works to the local authority.
Failure to give such notice was an offence. On receipt of the notice the
local planning authority could either allow the works to proceed or make a
building preservation order. No distinction was made in regard to procedure
between works of demolition, on the one hand, and works of alteration or
extension on the other.
The provisions
of the 1947 Act were repealed and substantially re-enacted by sections 30, 32
and 33 of the Town and Country Planning Act 1962. In Parts VI and VII of the
1962 Act there were re-enacted also various provisions for the payment of
compensation following certain planning decisions restricting new development.
Part VIII re-enacted provisions which enabled an owner whose interests had been
affected by various
by the local authority. Section 125 enabled a building preservation order to
make provision for payment of compensation by a local authority, and section
137 enabled a purchase notice to be served in the case of a building
preservation order.
Part V of the
Town and Country Planning Act 1968 introduced a new basis of control by local
authorities over buildings of special architectural or historic interest. This
is the basis which, subject to some minor alterations, is now to be found in
Part I of the Planning (Listed Buildings and Conservation Areas) Act 1990. The
provisions relating to building preservation orders were discontinued. The
control was now to be by means of the list approved by the minister. The
demolition of a listed building, or its alteration or extension in any manner
which would affect its character as a building of special architectural or
historic interest, was to be a criminal offence unless authorised under that
part of the Act. The expression ‘listed building’ was defined for the first
time. It was to mean a building which was for the time being included in a list
compiled or approved by the minister under section 32 of the 1968 Act, which
was to continue in force.
The 1968 Act
also dealt with various matters of procedure. Authorisation for the demolition,
alteration or extension of a listed building was to be by means of written listed
building consent granted by the local planning authority or by the minister.
Provision was made for the form and manner in which applications for listed
building consent were to be made, for the notification to the minister of such
applications made to it by the local planning authority and for the giving of
directions by the minister to local planning authorities requiring them to
notify other bodies of such applications and of the decisions taken thereon.
Much of the system in regard to the form and manner of dealing with
applications for listed building consent was to be dealt with by means of
regulations made under the Act. In the case of demolition, notice of the
proposal to execute the works had also to be given to the Royal Commission on
Historical Monuments, and time had to be allowed before they were commenced for
the commission to have reasonable access to the building for the purpose of
recording it unless the commission stated in writing that they had completed
their recording of the building or did not wish to record it. The procedures
for compensation and for the service of a purchase notice on the local
authority were to be available in the event of a refusal or conditional grant
of listed building consent. Compensation could be claimed under section 43 only
where listed building consent was refused for works of alteration or extension,
and only if the works proposed did not constitute development or the
development was such that planning permission therefor was granted by a
development order. A listed building purchase notice could be served on the
local authority, irrespective of the nature of the proposed works, if the
refusal rendered the land incapable of reasonably beneficial use in its
existing state. In London County Council v Marks & Spencer Ltd
[1953] AC 535 it was held that, while demolition works as such did not require
planning permission, works which
site were operations for which planning permission would have been required but
for the exception which was available in that case under section 78(1) of the
1947 Act. It appears that section 43 of the 1968 Act was framed on the basis
that it was inappropriate to make provision for compensation in a case where
the works proposed were demolition works, as any subsequent beneficial use of
the site would require planning permission and compensation for refusal of
planning permission was not generally available.
The provisions
which I have just summarised duly found their way without material alteration
into the Town and Country Planning Act 1971: see sections 54–56 of and Schedule
11 to that Act. In 1990 the legislation relating to town and country planning
was consolidated into four Acts — the principal Act, which is the Town and
Country Planning Act 1990, and three separate Acts dealing with listed
buildings and conservation areas, hazardous substances and consequential
provisions respectively. The only provision in the principal Act which requires
to be noticed is the definition of the expression ‘building’ in section 336(1)
of that Act. As I have already mentioned, that definition by which the
expression includes ‘any part of a building’ is extended to the Planning
(Listed Buildings and Conservation Areas) Act, by section 91(2) of that Act.
In the course
of the hearing before your lordships it became clear that in order to dispose
of this appeal it was necessary to examine more closely the definition of the
expression ‘listed building’ in the light of the definition of the expression
‘building’ which is given in the principal Act. The issue which arises in this
case is a different one from that which was considered in Debenhams plc
v Westminster City Council [1987] AC 396. In that case it was necessary
to consider the effect of the extended definition of ‘listed building’ which is
now set out in section 1(5) of the Planning (Listed Buildings and Conservation
Areas) Act by which any object or structure fixed to a building, or forming
part of the land comprised within the curtilage of the building, is to be
treated as part of the building. Lord Keith of Kinkel said at p403F–G that the
word ‘structure’ was intended to convey a limitation to such structures as were
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, the concept which was envisaged being that of
principal and accessory. Thus the word ‘structure’ was not intended to embrace
some other complete building in its own right. The question which we have to
address is whether, given that the controls of the Act extend to every part of
a listed building including such objects and structures as are to be treated as
part of it, they must be applied in the same way to each part of the listed
building as they apply to the whole. This is a problem of interpretation. Does
the way in which the expression ‘listed building’ is used in the Act show that,
having regard to the way the expression ‘building’ is used in this context, the
controls are intended to be applied to the listed building seen as a whole? Or
can they be applied, in a way which makes sense of the Act, to parts of the
building only so that these
questions it is necessary to review the various provisions of the Act which are
relevant to this issue.
Relevant
provisions of the Planning (Listed Buildings and Conservation Areas) Act
Part I of the
Act makes provision for the listing of buildings of special architectural or
historic interest, the consequences of such listing, authorisation of works
affecting listed buildings and the rights of owners to compensation and to
serve listed building purchase notices. Part II of the Act, which deals with
conservation areas, provides for the designation of conservation areas and the
control of demolition of certain buildings in conservation areas.
In Part I the
sections to which I shall need to refer are sections 1, 7–9, 17 and section 27.
In Part II the relevant section is section 74. The claim for compensation is
made under section 27, which is the principal section which we have to
construe. But in order to understand the meaning of the words used in it, it is
necessary also to examine the other sections. Section 27.– (1) of the Act
provides:
27.–(1) This section shall have effect where —
(a) an application is made for listed building
consent for the alteration or extension of a listed building;
(b) the works do not constitute development or
they do so but the development is such that planning permission for it is
granted by a development order; and
(c) the Secretary of State, either on appeal or
on the reference of the application to him, refuses such consent or grants it
subject to conditions.
The words
which we have to construe in order to understand the scope and effect of this
subsection are the words ‘alteration’ and ‘listed building’. Works of
alteration to a building may take various forms, and the description which is
to be applied to them will vary according to whether these works are to be seen
in the context of their effect on the whole building or on the parts only of
the building where the work is to be done. An architect who is asked to design
a scheme to alter a building in order to modernise it or improve its
accommodation may propose that parts of the existing structure should be
removed. He may say that he needs to do this in order to replace that part with
a different part or that he needs to do so in order to accommodate a new design
which will not involve any replacement. He may describe what he proposes as the
taking away or removal of that part, or he may say that that part needs to be
demolished. But the various proposals which he makes and the words which he
uses to describe them will all fall within the general description of works of
alteration to the whole building. He would resist the idea that he was
proposing demolition of the building just because his scheme of alteration
required the removal or demolition of parts of it in order to accommodate his
scheme.
It seems then
that it is not enough just to ask whether what is proposed
apply — or works of demolition on the other. Different answers may be given to
this question depending on what the structure is to which the expression is
applied. The question has to be asked in the context of the whole phrase,
including the words ‘of a listed building’. Again, different answers may be
given to the question depending on whether regard is to be had to the whole of
the building or part of a building which has been listed or whether regard is
to be had only to the part of the building which is to be affected by the
works. It is not satisfactory that the answer to the question should vary in
this way, as different people may arrive at different answers according to the
view which they take of what is meant by the words ‘listed building’. This is
likely to give rise to confusion or at least uncertainty in the application of
the statute to the works which have been proposed. But if the expression
‘listed building’ in this context were to be read as meaning simply any
building or part of a building which is for the time being included in the list
as a listed building — taking due account of the extended definition in section
1(5) of the Planning (Listed Buildings and Conservation Areas) Act — so that
the question whether what is proposed amounts to an alteration is considered in
the context of the whole, and not part only, of what has been listed, the
opportunity for different views about the nature of the proposal would be
minimised and the scheme of the Act would be that much easier to understand.
Reduced to a
question of statutory construction therefore the question is whether the
context in which the word ‘building’ is used here, where it appears in the
phrase ‘listed building’, requires that the reference to ‘any part of a
building’ in section 336(1) of the principal Act be left out of account. In
order to answer that question it will be convenient now to examine more fully
the way in which the expression ‘listed building’ is used in the Planning
(Listed Buildings and Conservation Areas) Act.
Meaning of
‘listed building’
Mr Barnes
accepted that the difficulty which has arisen in this case is due entirely to
the extended meaning which is given to the word ‘building’ in the principal Act
as including ‘any part of a building’. He said that in his approach to the
Planning (Listed Buildings and Conservation Areas) Act he had read the words
‘any part of a building’ into the phrase ‘listed building’ on every occasion
where this phrase appears in the Act. On this approach it is easy to see how,
if the chimney breasts are treated as part of a listed building, their
demolition cannot be treated as amounting merely to an alteration of that part
of the building. The purpose of the demolition was to remove the chimney
breasts entirely, not to alter them. If section 27(1)(a) is to be read as
directing that that section is to have effect where ‘an application is made for
listed building consent for the alteration or extension of a listed building or
part of a listed building‘, one could without much difficulty say that the
appellants’ application did not meet this requirement because it was an
application to demolish a part of the listed building — namely the chimney
breasts — not to alter or extend that part of the listed building.
But, for the
reasons which I have already given, I do not think that it is self-evident that
the expression ‘listed building’ must be read in this way. Section 91(1) of the
Act provides that, except in so far as the context otherwise requires, ‘listed
building’ has the meaning given in section 1(5). Section 1(5) is in these terms:
(5) 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 this Act —
(a) any object or structure fixed to the
building;
(b) any object or structure within the
curtilage of the building which, although not fixed to the building, forms part
of the land and has done so since before 1st July 1948,
shall be
treated as part of the building.
It is not said
either in section 91(1) or in section 1(5) of the Act that the expression
‘listed building’ includes any part of a listed building. The word ‘building’
where it appears on its own must, of course — unless the context otherwise
requires — be given the extended meaning which it has in terms of section
336(1) of the principal Act. So the word ‘building’ in the first line of
section 1(5) must be read as including any part of a building. Thus the entry
which is included in the list may refer to a whole building or to a part of a
building according to what is necessary in the opinion of the Secretary of
State to achieve the purposes of the Act. Whatever is included in the list will
then fall within the expression ‘listed building’, and it is clear that the
controls of the Act extend to the whole of what has been listed including all
its parts. But there is no direction in section 1(5) to the effect that
wherever the expression ‘listed building’ is used the words ‘any part of a
listed building’ may be substituted for that expression so that the controls of
the Act may be applied separately to each part as well as to the whole
building. The question whether these words may be substituted depends on the
way in which the expression ‘listed building’ is used to provide these
controls. One can well understand why the word ‘building’ was given an extended
meaning by the principal Act. There were likely to be many cases where it would
be difficult to say precisely whether the structure which required to be dealt
with under a particular provision of that Act was a building or was a part of a
building — take a block of terraced houses or offices, for example — or where
it would be necessary to extend the controls of that Act to what was
undoubtedly only a part of a building. In the case of a listed building however
all one needs to know, in order to identify the structure to which the controls
in the Planning (Listed Buildings and Conservation Areas) Act apply, is what is
the building or part of a building which is for the time being included in the
list. Furthermore the direction in section 336(1) of the principal Act that the
expression ‘building’ includes any part of the building does not purport to be
an absolute rule. It applies ‘except in so far as the context otherwise
requires’. So it is necessary to examine the context in which the word
‘building’ appears, when it is used as part of
should be given to it when it is used as part of this phrase.
Section 1(1)
of the Act provides that, for the purposes of the Act and with a view to the
guidance of local planning authorities in the performance of their functions in
relation to ‘buildings’ of special architectural or historic interest, the
Secretary of State shall compile lists of ‘such buildings’ or approve of such
lists compiled by the Historic Buildings and Monuments Commission for England
or by other persons or bodies of persons, and may amend any such list so
compiled or approved. Section 1(3) provides that, in considering whether to
include a ‘building’ in a list compiled or approved under that section, the
Secretary of State may take into account not only ‘the building’ itself but
also any respect in which its exterior contributes to the architectural or
historic interest of any group of buildings of which it forms a part, and the
desirability of preserving any feature of ‘the building’ consisting of a
man-made object or structure fixed to it or forming part of the land and
comprised within its curtilage. I see no difficulty in reading the word
‘building’ wherever it appears in these two subsections as including ‘any part
of a building’. Circumstances may be envisaged where only a part of a building
is of special architectural or historic interest, and where no good purpose
would be served by extending the special control to the whole building. So
content can be given here to the provision in section 91(2) that the word
‘building’ in the Act is, except in so far as the context otherwise requires,
to have the same meaning as in the principal Act.
Accordingly,
when one comes to the definition of the expression ‘listed building’ in section
1(5) of the Act — namely, that it means ‘a building which is for the time being
included in a list compiled or approved by the Secretary of State’ — the
extended meaning can be given to the word ‘building’ in the passage which I
have just quoted without difficulty. The expression ‘listed building’ can be
taken to mean a building or part of a building which is for the time being
included in the list. The definition then states that objects or structures
fixed to the building, or within its curtilage, are to be treated as part of
the building. The expression ‘the building’ in this part of the definition
plainly means the listed building as already defined — that is to say the
building, or any part of a building, which is for the time being included in
the list. I do not think that it is necessary to give the word ‘building’ when
used in the expression ‘listed building’ the extended meaning in order to make
sense of this part of the definition. All this part of the definition is
telling us is that these objects or structures are to be treated, by accession,
as part of the structure — whether it be a building or a part of a building —
which is for the time being included in the list as a listed building.
Sections 7–9
of the Act provide for the control of works in respect of listed buildings. The
leading provision is section 7, which is in these terms:
Subject to
the following provisions of this Act, no person shall execute or cause 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, unless the works are
authorised.
There then
follows section 8, which sets out the procedure for obtaining authorisation for
the proposed works, and section 9, which provides that a person who contravenes
section 7 or fails to comply with any condition attached to a listed building
consent shall be guilty of an offence.
I do not think
that it is necessary to give the word ‘building’ in the expression ‘listed
building’ its extended meaning in order to make sense of section 7. On the
contrary, the wording of section 7 suggests that the extended meaning of the
word ‘building’ has no function here. All one needs to identify, in order to
apply its provisions, is the building or part of a building which is for the
time being in the list as a listed building — in other words, is the structure
in question a listed building? If it is, its demolition — assuming for the
moment that this word means the removal of the entire building — would be bound
to affect its character as a building of special architectural or historic
interest, because if it were not of that character it would not be in the list.
Works of alteration or extension, on the other hand, may or may not have that
effect — hence the qualification which applies to these words for the purposes
of section 7. Section 8(2), which provides that works for the demolition of
listed buildings are authorised if, inter alia, notice of the proposal
to execute the works has been given to the Royal Commission, requires also that
after such notice has been given either:
(i) for a period of at least one month following
the grant of such consent, and before the commencement of the works, reasonable
access to the building has been made available to members or officers of the
Royal Commission for the purpose of recording it; or
(ii) the Secretary of the Royal Commission, or
another officer of theirs with authority to act on their behalf for the
purposes of this section, has stated in writing that they have completed their
recording of the building or that they do not wish to record it; …
The requirement
is for notice to be given to the Royal Commission before the works are
commenced. It assumes that consent for their execution has already been
granted. Under a separate requirement, which is the subject of directions made
by the Secretary of State under section 15(5) of the Act by means of Circular
8/87, paras 81 and 82, all applications for consent to demolish a listed
building will already have been notified to the Royal Commission, and all
applications to alter, extend or demolish any Grade I or starred Grade II
building outside Greater London and any grade of listed building in Greater
London will already have been notified to the Historic Buildings and Monuments
Commission for England by the local planning authority before the applications
are disposed of by granting or refusing consent.
The word
‘building’ in the passage which I have quoted from section 8(2) can be read as
including any part of a building, because only a part of a building may have
been included in the list as a listed building. But it
‘building’ here is to mean the building which has been listed — the ‘listed
building’ which is referred to in the opening words of subsection (2) — by
taking it as including any part of a listed building. When para (i) refers to
the giving of reasonable access to ‘the building’ and para (ii) refers to the
completion of the recording of ‘the building’, the context suggests that it is
the listed building as a whole which is being contemplated. I think that the
wording of this subsection supports the view that when the Act uses the
expression ‘listed building’ it means simply the building, or part of a
building, which is for the time being included in the list.
In the course
of his opinion Millett LJ said that the expression ‘part of a building’ does
not appear at all in the Planning (Listed Buildings and Conservation Areas) Act
and that the definition of ‘building’ makes this unnecessary. This observation
is not however, with great respect, entirely accurate. Section 17(1) is in
these terms:
(1) Without
prejudice to the generality of section 16(1), the conditions subject to which
listed building consent may be granted may include conditions with respect to —
(a) the preservation of particular features of
the building, either as part of it or after severance from it;
(b) the making good, after the works are
completed, of any damage caused to the building by the works;
(c) the reconstruction of the building or any
part of it following the execution of any works, with the use of original
materials so far as practicable and with such alterations of the interior of
the building as may be specified in the conditions.
Strictly
speaking, the words ‘or any part of it’ in para (c) of this subsection would
not have been necessary if the definition of ‘building’ in the principal Act
was to apply. In its context the word ‘building’ in section 17(1) clearly means
the building — that is to say, the listed building — with respect to which
listed building consent is to be granted. The use of the words ‘or any part of
it’ in para (c) is consistent with the view that the word ‘building’ does not
have the extended meaning when it is used in the expression ‘listed building’.
Further
assistance can, I think, be found in the provisions of section 17(3) which
provides:
(3) Listed
building consent for the demolition of a listed building may be granted subject
to a condition that the building shall not be demolished before —
(a) a
contract for the carrying out of works of redevelopment of the site has been
made; and
(b) planning
permission has been granted for the development for which the contract
provides.
If the
expression ‘listed building’ is to be read as including ‘any part of a listed
building’, it would seem to follow that the removal of any part of it which did
not amount merely to the alteration or extension of that
subsection (3). But the removal might be of a small part, such as the whole or
part of a partition wall, the effect of which could not reasonably be said to
produce ‘a site’ for redevelopment. Yet the provisions of this subsection seem
to have been framed on the assumption that when a listed building is demolished
there will then be a site for redevelopment. In other words, its wording
suggests that it is the whole of the listed building, not a part of it, which
must be affected by the works of demolition if its provisions are to apply.
My lords, I
have not found any provision in Part I of the Act where it is not possible to
make perfect sense of the expression ‘listed building’ in its context without
reading the word ‘building’ as including any part of a listed building. The
various places in which the word ‘building’ is used in this expression, when
taken together with the definition which is given to it by section 1(5),
suggest that this word should not be given its extended meaning where it
appears in the phrase ‘listed building’. It is sufficient to give the word
‘building’ its extended meaning for the purposes of this Act that the Secretary
of State may include the whole or any part of a building in the list. Once the
whole or any part of a building has been included in the list, however, it
becomes a ‘listed building’ for the purposes of the Act. The fact that only a
part of a building has been included in the list then ceases to have any
significance. It is the entry in the list which identifies the structure which
is thereafter to be referred to as the ‘listed building’.
It was
suggested that the provisions of section 74, which appears in Part II of the
Act relating to conservation areas, were inconsistent with this interpretation.
Subsection (1) of section 74 provides that a building in a conservation area
shall not be demolished without the consent of the appropriate authority, and
subsection (3) provides that various sections in Part I of the Act have effect
in relation to buildings in conservation areas as they have effect in relation
to listed buildings. I do not think that there is any inconsistency, so long as
it is appreciated that a listed building can consist of a part of a building.
Buildings in conservation areas are put on the same footing as buildings of
special architectural or historic interest, or any part of a building which has
that character, which is for the time being included in the list. In the
context of section 74(1), subject to any exceptions or modifications in this
regard which may have been prescribed under subsection (3) of that section, the
reference to the demolition of a building in a conservation area must be taken
to mean the removal of the whole building, in the same way as section 17(3)
appears to contemplate works to a listed building which will produce a site for
redevelopment.
Meaning of
‘demolition’
The meaning
which I would give to the expression ‘listed building’ leaves little room for
discussion about the meaning of the word ‘demolition’ in this context. But as
it received close attention in the Court of Appeal I think that it is necessary
to examine the word more closely in order to see whether it is still possible
to support the view, contrary to that
in this case were works of demolition rather than works of alteration or
extension for the purposes of section 27(1). According to its ordinary meaning,
the word ‘demolish’ when used in reference to a building means to pull the
building down — in other words, to destroy it completely and break it up. I
agree therefore with Millett LJ when he said that demolition, with or without
replacement, on the one hand and alteration on the other are mutually exclusive
concepts. In relation to a building, its destruction and breaking up cannot
constitute a mere alteration. Once the works are over, the old building has
gone. The problem which led the majority in the Court of Appeal to hold that
the works which were proposed to the chimney breasts amounted to works of
demolition and not alteration arose when they applied these words to a part
only of the listed building — that is, to the chimney breasts, not to the whole
building. I can see the force of the observation, which appears in the same
passage in Millett LJ’s judgment and is then the subject of careful examination
in the judgment of Sir Ralph Gibson, that the demolition and replacement of a
part of a building cannot constitute an alteration of that part. The
replacement of that part, as they pointed out, was to be a substitute for the
old, not an alteration of it. Millett LJ then recognised, correctly in my
opinion, that, while the demolition and replacement of part of a building
cannot constitute the alteration of that part (his emphasis), it can
constitute an alteration of the whole. He said that this approach would provide
a test which was at once workable and provided some explanation of the
legislative purpose in awarding compensation for the refusal of consent for
alteration and withholding it for demolition. As he put it1:
1 [1995] 1 PLR 72 at
pp
The test
would be whether the application, however worded, could fairly be described as
an application to alter a listed building by demolishing or demolishing and
replacing part. It would not matter how extensive the alterations were; major
alterations qualify for compensation: indeed, the alterations must be
significant enough to affect the character of the building or consent would not
be required in the first place. What mattered would be what was left. The
question would be whether those parts which were not to be demolished or
demolished and replaced were sufficient to enable the application to be fairly
described as an application to alter the building by demolishing part rather
than as an application to demolish the whole or substantially the whole of the
building.
The provision
in the Act which persuaded Millett LJ and Sir Ralph Gibson to reject this
approach is section 8. This section deals separately with works of alteration
or extension, on the one hand, and works of demolition, on the other. It deals
with the procedure for authorisation, where listed building consent is being
sought. There is a difference in procedure between works of alteration or
extension and works of
single procedure with additional requirements in the case of demolition works.
Where works of alteration or extension are involved, all that is needed is
written consent for their execution given by the local authority or by the
Secretary of State and that the works are then executed in terms of the consent
and of any conditions attached to it. Where works of demolition are involved,
notice of the proposal must also be given to the Royal Commission and one or
other of the periods referred to in section 8(2)(c), which I have already
quoted, must then be allowed to elapse.
The question
whether the word ‘building’ in the phrase ‘listed building’ has the extended
meaning given to it in the principal Act lies at the heart of the discussion
about section 8. As the majority in the Court of Appeal pointed out, if the
demolition of part can also constitute an alteration of the whole, then such
works will be authorised works if subsection (1) of section 8 is satisfied even
though notice has not been given to the Royal Commission in accordance with
subsection (2) before the works are commenced. I agree that it cannot have been
the intention of parliament that works for the demolition of a listed building
should be authorised where the provisions of subsection (1) only were
satisfied. But I do not agree with the assumption on which this proposition has
been based. In my opinion, the whole difficulty is removed if the phrase
‘listed building’ is given the meaning which I have suggested should be given
to it in the earlier part of this opinion. There can then be no question of the
word ‘demolition’ within the meaning of the Act being applied to works of
alteration which affect only part of a listed building.
It is
important to notice also that the requirement to notify the Royal Commission
under section 8(2) assumes that listed building consent for the execution of
the works has already been granted by the local planning authority or by the
Secretary of State. The purpose of this requirement is confined therefore to
enabling the Royal Commission to obtain access to the building and record it
before the commencement of the works. While the maintenance of an inventory of
buildings of special architectural or historic interest is an important part of
the commission’s functions, this is not the stage at which it can express views
as to whether it is appropriate for the proposal to receive listed building
consent. An opportunity will already have been given to the commission and to
the Historic Buildings and Monuments Commission to express any views at the
earlier stage before the application is disposed of under the procedures laid
down by the Secretary of State under section 15(5) by means of the circular.
The structure of the legislation as it operates in practice cannot be
understood without a full appreciation of the wide powers of regulation and
direction which have been given in these matters to the Secretary of State and
the way in which these powers have been exercised. For present purposes however
it is sufficient to say that the requirement for notification in section 8(2)
is concerned essentially with record-keeping and not with the question whether
or not listed building consent should be granted for the proposed works.
As I have
said, section 8(2) can be read with perfect sense if the word
building or part of a building which is for the time being included in the list
as a listed building. If that building or part of a building — the ‘listed
building’ — is to be pulled down, so that it will be destroyed completely and
broken up, the works will amount to its destruction to which the additional
procedure in section 8(2) will always apply. Works which involve the pulling
down and breaking up of part of the building, falling short of its destruction,
will fall within the expression ‘alteration’ which, if they would affect its
character as a building of special architectural or historic interest, will
require consent to be sought under section 8(1).
I should like
to make it clear that I do not see the word ‘demolition’ as applying only where
the proposal is that every single part of the listed building should be pulled
down. It is now commonplace, especially in towns and cities, where the exterior
of a building contributes to the architectural or historic interest of a group
of buildings such as buildings in a terrace, for the facade to be left standing
while clearing the remainder of the site for redevelopment. That indeed is what
was done in this case. As section 17(3) has envisaged in the case of demolition
works, planning permission for the redevelopment of the site was granted at the
same time as the original proposals received listed building consent and
conservation area consent. It seems to me to be plain that the original
proposal was for the demolition of the listed building for all practical
purposes, so that a scheme of redevelopment could be carried out. It went far
beyond what could reasonably be described as its alteration, as the works were
so extensive and so much was to be pulled down and taken away, although the
facade and the chimney breasts and chimney stacks were to be retained. The
question is ultimately one of fact for the decision of the Lands Tribunal, and
I do not think that any more precise definition of this expression is required.
We were
referred to Lord Diplock’s observations in Customs & Excise
Commissioners v Viva Gas Appliances Ltd [1983] 1 WLR 1445, at
p1451A–B, where he said that the word ‘demolition’ meant destroying the
building as a whole. That case was concerned with a phrase in the description
of an item in group 8 of Schedule 4 to the Finance Act 1972 relating to value
added tax, where there was no reference to ‘any part of a building’. What had
to be construed was the meaning of ‘demolition’ when it appeared in the phrase
‘in the course of the construction, alteration or demolition of any building’.
Mr Barnes said that that case was of no assistance here, because the words ‘any
part of a building’ formed part of the definition in the 1990 Act and were thus
relevant to this case. On the view which I have taken of the meaning of the
expression ‘listed building’ that argument no longer applies. But I would prefer
not to take Lord Diplock’s observation out of its context. In any event I do
not think that what he said in that case can be taken to mean that, in the
context of listed building consent, works which will involve the removal of so
much of the old building as to clear a site for redevelopment cannot be held to
amount to demolition works for the purposes of Part I of the Act, and in
particular for the purposes of section 8(2).
Other
matters
(a) It
should be noted that the view which I take of the meaning of the expression
‘listed building’ and of the distinction between works of ‘demolition’ and
works of ‘alteration’ in this context is not the same as that which has been
expressed in Circular 8/87 and in a prior decision in the Queen’s Bench
Division. In R v North Hertfordshire District Council, ex parte
Sullivan [1981] JPL 752, Comyn J was referred to para 66 of Circular 23/77
which was in these terms:
It is often
asked whether works which do not involve total demolition of the building
should, nevertheless, be regarded as ‘works for the demolition of a building’.
The Secretary of State cannot give an authoritative interpretation of the rules
but draws attention to section 290(1) [of the 1971 Act] — in which building is
defined as including any part of a building but demolition of a part of the
building should thus be regarded as the demolition of the building for the
purposes of section 55 and 77(a).
That case was
concerned with the question whether an extension of a listed building which
involved the demolition of parts of the listed building constituted demolition
within the meaning of the Act which required the proposal to be notified to
various interested bodies by the local planning authority. The judge held that
the dominant word in the provisions about demolition, alteration and extension
was the word ‘demolition’, especially where, under the interpretation section,
demolition was deemed to refer not only to a building but also to part of a
building. As was observed in the comment on that decision, the problem raised
by that case was how to find a wording which would distinguish between
fundamental demolitions and works which, although they involved a partial
demolition of a building, were relatively minor. The commentator added that one
easy solution would be to amend the law so that demolition of a building, in
the context of listed buildings, did not include the demolition of part of a
building but only the complete demolition of a building. It was recognised
however that it might be considered that this would be too drastic, since it
would mean that works which might fundamentally change a listed building would
come under less stringent procedures if they fell short of complete demolition.
On the approach which I favour to the meaning of these words no alteration of
the Act would be required. It will be sufficient to read the expression ‘listed
building’ in the context of Part I of the Act as meaning a building or any part
of a building which for the time being is included in the list. So demolition of
a part only of what is in the list as a listed building will not constitute
demolition for the purposes of this part of the Act unless the works which are
to be carried out to the listed building as a whole are so substantial as to
amount to a clearing of the whole site for redevelopment.
(b) The
advice which was given in Circular 23/77 has been carried one stage further in
regard to conservation areas, to which the provisions of the Planning (Listed
Buildings and Conservation Areas) Regulations 1990 (SI 1990 No 1519) apply, by
a planning policy guidance note issued by the
September 1994 (PPG 15) para 4.28 of which is in these terms:
Section 336
of the principal Act states that a building includes ‘any part of a building’.
The demolition of part of a building should therefore be regarded as falling
within the scope of conservation area control. What constitutes a demolition or
demolition of part of a building must be a matter of fact and degree, to be
decided in the particular case and ultimately by the Courts. Routine works of
repair, maintenance or replacement, including work involving such items as
doors or windows, would not in the Secretary of State’s view normally
constitute demolition. Likewise, the removal of internal features, whether
replaced or not, would not usually constitute a demolition and for the purposes
of conservation area consent would not, in any event, have a material impact on
the building’s appearance or affect the character or appearance of the area.
It follows
from what I have said that the advice in that paragraph will require to be
reconsidered. Subject to such exceptions or modifications as may have been
prescribed by regulations under section 74(3), it will no longer be correct to
say that, because of the definition of ‘building’ in the principal Act, the
demolition of part of a building in a conservation area should be regarded as
falling within the scope of conservation area control. In the context of section
74 of the Act, which requires to be read together with the legislation relating
to listed buildings in Part I of that Act, the reference to demolition of a
building means the demolition of the whole building. But advice can still be
given to the effect that the question what constitutes the demolition of the
whole building is a question of fact and degree which will need to be decided
on the facts of each case.
(c) It
was submitted for the respondents that the application for consent to remove
the chimney breasts was part of a series of steps designed to secure the
overall aim of gaining consent to demolish the greater part of a listed
building. This argument was presented under reference to Furniss v Dawson
[1984] AC 474, on the view that there was a premeditated scheme to achieve that
end. But I agree with Sir Ralph Gibson that the respondents cannot derive any
assistance from the principles established in Furniss v Dawson.
As he put it, a claimant is entitled to make applications for planning
permission or for listed building consent at such time and in such sequence as
he chooses. Furthermore, there is no evidence here of a preordained series of
transactions. Ownership of the building changed between the date of the
original applications and the application for consent for the removal of the
chimney breasts before the Lands Tribunal, as the member has recorded at p9 of
his decision, and it was common ground between counsel for the parties that
there was no deliberate scheme by the claimants involving the fragmenting of
the applications so as to secure and maximise compensation.
(d)
Various criticisms were made of the reasoning by which the member reached his
decision that the removal of the chimney breasts constituted an alteration
rather than demolition of part of a building. Millett LJ said that his
reasoning could not be supported, as many of the considerations
decide. In my opinion, the force of these criticisms is removed by the approach
which I have taken to the meaning of the expression ‘listed building’, so I do
not think that it is necessary to go over this ground again.
Conclusion
For the
reasons which I have given I consider that the question which had to be
answered in this case is whether the proposed works for the removal of the
chimney breasts constituted demolition of the listed building or its alteration
or extension. The member did not approach the question in this way, because he
had regard to the extended meaning of the word ‘building’ in dealing with the
issue, which he said was whether the proposed works amounted to the alteration
or the demolition of part of the listed building. But in my opinion he was
entitled to hold on the facts that the proposed works were works of alteration
and not works of demolition. That is sufficient to support the decision which
he reached, as the question was essentially one of fact for him to decide. I
would therefore allow this appeal and restore the decision of the Lands Tribunal.
Appeal allowed.
