Listed building — Whether removal of chimney breasts and consequential alterations demolition or alterations — Whether compensation payable for refusal of consent
On June 4 1991
the Secretary of State for the Environment refused listed building consent to
the respondent 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 respondent 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 for an application 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: [1994] 1 EGLR 214. The appellant council appealed
contending that the application had been for demolition of part of the
building.
Under the
Planning (Listed Buildings and Conservation Areas) Act 1990 ‘building’ includes
a part of a building and demolition and alterations are mutually exclusive
concepts; the demolition and replacement of part of a building cannot
constitute a mere alteration of that part: see pp81 and 86. The identification
of these separate concepts arises because of the procedure provided for in
section 8 where an application is made to demolish a building; ‘building’ also
includes part of a building and the procedure must apply to a proposal to
demolish part of building: see pp81 and 87.
Per Russell
LJ dissenting: The question whether a particular
activity is demolition or alteration of a building is essentially a question of
fact to be determined in the light of all relevant circumstances. The tribunal
was entitled to regard the proposed work as an alteration to part of the
building: see p76A.
to in the judgments
Furniss v Dawson [1984] AC 474; [1984] 2 WLR 226; [1984] 1 All ER 530,
HL
R v North Hertfordshire District Council, ex parte Sullivan
[1981] JPL 752
Appeal by way
of case stated
This was an
appeal by Westminster City Council by way of a case stated from the decision of
the Lands Tribunal (T Hoyes FRICS) on the hearing of
payable on a claim by the respondents, Shimizu (UK) Ltd, under section 27 of
the Planning (Listed Buildings and Conservation Areas) Act 1990.
QC (instructed by the solicitor to Westminster City Council) appeared for the
appellants, Westminster City Council.
Holgate (instructed by Freshfields) appeared for the respondents, Shimizu
(UK)Ltd.
following judgments were delivered.
RUSSELL LJ: On the
corner of Piccadilly and Old Bond Street, London W1, there is a Grade II listed
building known as Qantas House. It comprises 56–60 Piccadilly and 45–50 Old
Bond Street. The property has been owned since on or about November 2 1989 by
Shimizu (UK) Ltd (Shimizu).
On July 6 1988
a conditional planning consent was granted to Shimizu’s predecessors in title
by Westminster City Council (Westminster) for the redevelopment of the site and
on the same date the planning authority gave conditional listed building
consent for the ‘demolition of all except the facade, chimney breasts and
stacks’ of the building. At this time the owners were Prudential Assurance Co.
After Shimizu
came on the scene there were amendments to the planning consent, but,
crucially, on June 22 1990 Shimizu made an application for listed building
consent for the removal of internal chimney breasts at ground, first, second,
third and fourth-floor levels behind the facade of the building. The
application was extended to the fifth floor on July 2 1990. The applications
were accompanied by plans showing the locations of the internal chimney
breasts. The plans indicated that the surrounding floors would be so extended
as to cover the area which would be exposed by removal of the chimney breasts.
The total horizontal area involved was some 300 sq ft. It is common ground that
the purpose of the applicants was to extend the floor area for commercial
purposes, and to this end it would be necessary to carry out in-filling so that
the additional floor area would be load bearing. The nature and extent of the
work involved would add to the lateral bracing effect imparted to the
structural steel frame of the building.
Westminster
did not respond to the applications within the statutory eight-week period and
eventually on June 4 1991 the Secretary of State for the Environment refused
listed building consent on the ground that the chimney breasts were of such
special architectural or historic interest to make it desirable to preserve
them.
The decision
led to a claim for compensation under section 27 of the Planning (Listed
Buildings and Conservation Areas) Act 1990.
Section 27(1)
reads:
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
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.
Section 7 of
the Act provides:
Subject to
the following provisions of this Act, no person shall execute or cause to be
executed any works for the demolition of the listed building or for its
alteration or extension in any manner which would effect its character as a
building of special architectural or historic interest, unless the works are
authorised.
It was common
ground that in section 7 a distinction is drawn between works of demolition and
works of alteration and extension. Demolition is not mentioned in section 27.
I need refer
to only two other statutory provisions. By section 91 of the Act it is provided
that, inter alia, except in so far as the context otherwise requires,
the word ‘building’ shall have the same meaning as in the Town and Country
Planning Act 1990. Section 336 of this statute provides that ‘building includes
any structure or erection and any part of a building’.
Thus, it can
be seen that under section 27(1)(a) and (c) the qualifying preconditions for
the payment of compensation are an application for the alteration or extension
of a listed building or any part thereof and refusal of such consent.
Westminster
declined to offer any compensation to Shimizu. They contended that the
operations proposed involving the chimney breasts amounted to no more than
their demolition as part of a building and that the work did not involve an
alteration to a building or part thereof within the terms of section 27.
Shimizu took a contrary view.
Thus the dispute
went to the Lands Tribunal (T Hoyes Esq frics)
as a preliminary issue. The issue was:
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 4th June 1991 constitute alterations to or extension of a listed
building under Section 27(1)(a) of the Planning (Listed Building and
Conservation Areas) Act 1990, with the result that compensation is accordingly
payable by the compensating authority to the claimant.
The member’s
finding was:
In answer to
the … question I therefore find that the proposed works for which consent was
refused were an alteration to a listed building, and that a potential liability
to pay compensation arises in the City Council as compensating authority.
Westminster
now appeal to this court by way of case stated, the case being that set out in
the decision of the Lands Tribunal.
The
submissions of counsel ranged over a wide field. Although it seems that a great
number of authorities were cited to the tribunal, that was not regarded as
necessary before this court. The conflicting submissions before us were
basically concerned with whether the member was justified in finding that the
proposed building operations as to the nature of which there was no dispute
amounted to no more than demolition or whether they were more appropriately
defined as an alteration.
For
Westminster Mr Nigel Macleod QC took us through the history as I have
endeavoured to summarise it. He submitted that in substance and reality
Shimizu’s proposals were part of a composite application which had begun prior
to their acquiring the freehold and that the scheme, viewed as a whole, was so
substantial that it amounted to demolition. It had been so described by the
developers as far back as 1986. It was wrong to fragment the scheme and isolate
the removal of the chimney breasts as the member had done. Their removal was
simply the completion of the earlier demolition programme involving the whole of
the property save the facades, the chimney breasts and the chimney stacks.
Further or in
the alternative, submitted Mr Macleod, on the assumption that the proposal
could be looked at in isolation the work involved removal of parts of the
building (ie the chimney breast) without structural replacement of them. That
was demolition and the work contemplated on the floor was no more than an
adjunct, necessary to make good the demolition.
Finally, it
was submitted on behalf of the appellants that the Lands Tribunal erred in
taking account both of events occurring subsequent to the application and the
way in which the planning authority and/or the Secretary of State had regarded
the applications. The tribunal and this court should look only at the words of
the applications for listed building consent and those applications described
the proposed works simply as the ‘removal of internal chimney breasts’. The
physical condition of the building at the date the applications were made, as
opposed to later, was all important.
On behalf of
Shimizu Mr David Holgate submitted that the applications in 1990 could not be
regarded as part of the earlier applications. They were separate and
free-standing applications and there was no suggestion that Shimizu had acted
in bad faith so as to manipulate the planning authority into a position where
compensation had become payable where none was payable before.
Mr Holgate
relied heavily upon the plans accompanying the applications which, he
contended, made it plain that the work went beyond the demolition of the
chimney breasts and making good thereafter. It was never in doubt that Shimizu
intended to put the additional floorspace acquired by the removal of the
chimney breasts to commercial use. In his submission simply to regard the in-filling
as making good the demolition was to change the true character and description
of the development proposed. His clients were not bound by the literal wording
of the applications; it was necessary to ascertain the true extent of the work
contemplated in order to apply a proper description to the nature of the
applications.
In my
judgment, the question whether a particular activity is ‘demolition’ or
‘alteration’ of a building is essentially a question of fact to be determined
in the light of all the relevant circumstances of the individual case. This
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.
Unless the fact-finding process can be attacked as legally flawed, or unless
the fact finding is plainly wrong, this court should recognise that the
decision is for the Lands Tribunal. The words ‘demolition’ and ‘alteration’
should be given their ordinary meaning. To ascertain which of them is apt for a
particular operation is the task of the Lands Tribunal.
I am of the
opinion that taking account of the extended meaning of the word ‘building’
contained in section 27, and within the context of this case, there are four
possibilities when work is to be done on a listed building. Those possibilities
are:
(1) the demolition of the building as a whole;
(2) the demolition of only part of the building;
(3) an alteration of the whole of the building;
(4) an alteration confined to a part of the
building.
Demolition of
the whole building presents no problem. It attracts no compensation. Demolition
of part may involve an alteration to the whole, but this was not the approach
made by either of the parties nor by the Lands Tribunal. An alteration to the
whole building and an alteration confined to a part, in my view, both attract
compensation, the latter even if it does not realistically affect the whole
building. An alteration to a part of a building may have demolition as an
ingredient of the alteration, but there must be more than mere demolition to
qualify for compensation. Demolition of a part of a building without further
work going beyond simple reinstatement cannot attract compensation.
For my part, I
take the view that the member was entitled to regard the development in this
case as being an alteration of part of the building, confined to the interior
in both the vertical and horizontal planes. It was not necessary for the
tribunal to consider the work in the context of an alteration to the whole building.
The member was entitled to regard the work to be done to the floors and their
acknowledged purpose as amounting, together with the demolition of the chimney
breasts, as an alteration to a part of the building. For these reasons I have
come to the conclusion that the decision of the Lands Tribunal should not be
disturbed and I would dismiss this appeal. However, as I understand Millett LJ
and Sir Ralph Gibson take a different view, the appeal must be allowed and the
decision of the Lands Tribunal set aside, there being no potential liability on
the part of Westminster to pay compensation.
MILLETT LJ: Under
the system of listed building control it is an offence without the prior
written consent of the local planning authority or the Secretary of State to execute
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.
compensation was payable by the local planning authority where an application
was made for listed building consent for the alteration or extension of a
listed building and consent was refused by the Secretary of State or granted
subject to conditions. No provision was made for compensation to be payable for
the refusal of consent to an application for the demolition of a listed
building.
In all the
relevant statutory provisions the expression ‘building’ includes part of a
building. The effect of this is that consent is required for the demolition or
for certain kinds of alteration or extension of a listed building or any part
thereof, and that compensation was formerly payable for the refusal of consent
for the alteration or extension of a listed building or any part thereof; but
that no similar provision was made for compensation to be payable for the
refusal of consent to an application for the demolition of a listed building or
any part thereof.
The present
case concerns a building formerly known as Quantas House on the corner of Bond
Street and Piccadilly. At all material times it has been a listed building. In
1988 the respondent owners obtained listed building consent and planning
permission for the demolition of all except the facades, chimney breasts and
chimney stacks and for the redevelopment of the site to provide a retail arcade
on the ground floor, ancillary retail and office accommodation and a winebar
restaurant in the basement and offices on the upper floors. Demolition began in
April 1990. In June 1990, by which time the greater part of the internal
structure behind the retained facades had been demolished, a further
application was made for listed building consent for:
the removal
of internal chimney breasts at ground, first, second, third and fourth floor
levels.
The
application was later amended to include the removal of the internal chimney
breasts at fifth-floor level and the provision of temporary and permanent
support to the chimney stacks.
The
application was considered by the local planning committee in December 1990.
The committee, which described the application as having as its object the
maximisation of lettable floorspace, approached it as being an application for
the demolition of the remaining internal structure of a building which already
had the benefit of consent for the demolition behind the retained facades of
all but the chimney breasts. Had an appeal to the Secretary of State not
already been lodged the committee would have refused consent. In due course the
application was considered by the Secretary of State and consent was refused by
him. The respondents then applied to the appellants, who are the compensating
authority, for compensation. The appellants denied that compensation was
payable, proceedings were brought in the Lands Tribunal and the issue of
liability was ordered to be tried as a preliminary issue.
The
preliminary issue correctly formulated the question on the answer to which the
appellants’ liability to pay compensation depended, viz:
building consent which was refused by the Secretary of State constituted
alterations or extensions to a listed building. Mindful of the fact that in the
relevant legislation ‘building’ includes a part of a building, the parties
concentrated on the internal chimney breasts which were the subject of the
relevant application and considered whether their removal and the provision of
additional flooring in the space thereby made available constituted
uncompensatable demolition or compensatable alteration of the chimney breasts.
Counsel for
the appellant compensating authority submitted that if an application for
listed building consent proposes the demolition of any part of the building
which is not de minimis the application must be characterised as an
application for consent to demolition and not alteration with the result that
no compensation is payable. He submitted that demolition and alteration are
mutually exclusive concepts; the same works cannot both be works of demolition
and works of alteration. Accordingly, where works to a listed building comprise
the removal of part of the building, with or without any or any substantial
replacement of that part, the works must in law constitute the demolition of
that part of the building. Since ‘building’ includes part of a building, he
said, it followed that the demolition of part of a building could not be
regarded as alteration of that part of the building or of the building itself.
I reject that last submission, which is a non-sequitur. It treats the
statutory definition of ‘building’ as including part of a building as if it
involved treating a part of a building as if it were the whole building, which
is not the case and would be absurd.
The member did
not accept these submissions. He accepted the respondents’ submission that many
alterations inevitably involve demolition and that to categorise the total
works as demolition except in cases where the extent of demolition was de
minimis would reduce the operation of the provisions for compensation to
vanishing point. He said that whether the proposed works were alterations or
demolition of the part of the building involved fell to be considered on the
facts of each case having regard to the nature of the works and all the
surrounding circumstances. These included the entire scheme of redevelopment,
the objective of the applicant in demolishing any part, and the way in which
the application was categorised by the local planning authority and the
Secretary of State. He applied the test propounded by Comyn J in R v North
Hertfordshire District Council, ex parte Sullivan [1981] JPL 752 and asked
himself whether the application was predominately concerned with demolition or
with alteration. He found, contrary to the submissions of the compensating
authority, that the works involved more than purely making good after the
removal of the chimney breasts. He remarked that the applicants’ objective in
demolishing the chimney breasts was to improve the internal layout of the
building by increasing its useable floorspace. He concluded that the works for
which consent had been refused were an alteration to the building and that
accordingly compensation was payable.
The way in
which the member expressed his conclusion was clearly
the process of reasoning by which he reached it. He never considered whether
the proposed works constituted an alteration of the building as a whole; he
found that they constituted an alteration of the part of the building to which
the application related, that is to say the internal chimney breasts.
I am satisfied
that the reasoning of the member cannot be supported. Many of the
considerations which influenced his conclusion are irrelevant to the question
he had to decide. Whether works are works of alteration or works of demolition
depends on the nature of the works themselves. It does not depend on the
commercial objective of the applicants in seeking consent to carry out the
proposed works but on their proper categorisation. It does not depend on the
way in which they have been categorised by the local planning authority or the
Secretary of State any more than it depends on the way in which they have been
categorised by the applicants. It is not to be answered by asking whether
demolition or alteration predominated, a test which I regard as unworkable at
best and meaningless at worst.
In my
judgment, demolition, with or without replacement, on the one hand, and
alteration, on the other, are mutually exclusive concepts. The demolition and
replacement of part of a building cannot constitute a mere alteration of that
part. The old part has gone. Its replacement is a substitute for the old, not
an alteration of it. But if this is right, as I believe it is, then the member
was wrong in regarding alteration as more extensive than demolition. It is not.
Demolition is more than mere alteration, not less.
While the
demolition and replacement of part of a building cannot constitute the
alteration of that part, it can constitute an alteration of the whole. As a
matter of ordinary language the alteration of a building can involve the
demolition of part. There is nothing in the statutory definition of the word
‘building’ which precludes this. The word ‘building’ is defined as including
part of a building, but the converse is not true. A part of a building is not
the same as the whole building and there is nothing in the Act to equate the
two. Indeed, the expression ‘part of a building’ does not appear at all in the
Act: the definition of ‘building’ makes this unnecessary.
During the
course of the hearing before us and for some time afterwards I was of opinion
that the key to an understanding of the relevant statutory provisions lay in
recognising that, while the demolition of part of a building could not
constitute the alteration of that part, it could constitute the alteration of
the building as a whole, with the result that refusal of consent for the
alteration would attract compensation.
This provided
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. 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
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.
Apart from
section 8 there is nothing in the Act to prevent the adoption of this solution.
I have, however, had the advantage of reading in draft the judgment of Sir
Ralph Gibson and I am reluctantly persuaded that this approach cannot be
maintained in the face of that section. I agree with him that it predicates
concepts of demolition and alteration which are mutually exclusive even to the
extent of precluding the demolition of part from amounting to alteration of the
whole.
It is an
offence (under section 9) to carry out works in contravention of section 7;
section 7 forbids the carrying out of works for the demolition of a listed
building or for its alteration or extension unless the works are authorised;
and section 8 deals separately with the authorisation of works of alteration or
extension, on the one hand, and works of demolition, on the other. It provides
(by subsection (1)) that works of alteration or extension are authorised if
written consent for their execution has been obtained and the works are
executed in accordance with the consent; and (by subsection (2)) that works of
demolition are authorised if, in addition to the foregoing, notice of the
proposal to execute the works has been given to the Royal Commission on the
Historical Monuments of England and an opportunity is given to the commission
to inspect and record what is proposed to be demolished before it is too late.
If the demolition of part can also constitute the alteration of the whole then,
as Sir Ralph Gibson has pointed out, such works will be authorised works if subsection
(1) is satisfied even though notice has not been given to the Royal Commission
in accordance with subsection (2). This cannot have been the intention of
Parliament.
I can find no
answer to this. Whether or not as a matter of ordinary language works of
alteration to a listed building may involve the demolition of part, such works
must fall outside the scope of the word ‘alteration’ in section 8. I have
considered whether, despite this, it might be possible to give the word a
different meaning in section 27, but I can find no justification for doing so.
I reach this
conclusion with reluctance, because I cannot discern the legislative purpose in
awarding compensation for the refusal of consent for the alteration of a listed
building, however extensive and whether or not involving the removal of part,
while withholding it for the refusal of consent for the demolition of part of a
listed building, however small. In this connection it is important to bear in
mind the distinction between removal and demolition. Demolition involves the
destruction of the subject-matter. Removal does not. The alteration of a listed
building by the removal of features of special historical or architectural
interest requires authorisation, but it does not require the Royal Commission
to be notified. Demolition does. The reason for the distinction is obvious: the
Royal Commission is to have an opportunity to record the feature in question
before it is destroyed. This is the reason for the separate treatment of
demolition and alteration in section 8. I do not find it easy to understand why
the dichotomy should be persisted in when it comes to the provisions for
compensation contained in section 27. Given that the removal of a feature of
special architectural or historic interest constitutes an alteration of the
building and that refusal of consent is compensatable, why should the
availability of compensation depend on whether the feature (which ex
hypothesi will not be removed) could have been removed without destroying
it?
Despite this I
am driven to the conclusion that the demolition or demolition and replacement
of part of a building constitutes alteration neither of that part nor of the
building as a whole. In the present case the application was for ‘the removal’
of the chimney breasts; but it was in fact for their demolition. I have no
doubt that it could fairly have been described as an application for consent
for the alteration of the building by the demolition of the chimney breasts,
but on the view to which I have felt impelled to come this is immaterial. The
proposals obviously needed to be notified to the Royal Commission; it follows
that they were not ‘alterations’ within sections 8 or 27; and it further
follows that the refusal of consent did not attract compensation.
I am also of
opinion that if the applicants had formulated proposals for the removal of the
chimney breasts in their entirety without damaging them there would have been
no answer to a claim for compensation. As it is, I have been driven to conclude
that no such claim can be made. It is an unpalatable conclusion which I reach
with regret and without any understanding of the legislative purpose in the
distinction which has been drawn between a refusal of consent which is
compensatable and a refusal which is not. My distaste is only slightly lessened
by the reflection that Parliament has removed the anomaly by withdrawing the
right to compensation.
I would allow
the appeal.
SIR RALPH GIBSON:
For my part I would allow the appeal and set aside the decision of the member
on the preliminary issue for the reasons which follow.
I find it
necessary to refer to the decision of the member in some detail. It may be
summarised, I think, as follows:
1. Since many
alterations will inevitably involve an element of demolition, to categorise the
total activity as demolition, thereby placing it outside section 27, would, de
minimis apart, mean that alterations would rarely attract compensation.
2. The issue
whether proposed works are alterations to or the demolition of part of a listed
building is to be considered on the facts in each case having regard to the
nature of the works and all the surrounding circumstances.
3. The
presence of an element of demolition in the proposals is a factor to be put in
the balance when deciding the nature or the character of the overall proposals
but unless the element of demolition is predominant it
District Council, ex parte Sullivan [1981] JPL 752.
4. It would be
wrong to disregard the overall ‘flavour’ of the proposals by seizing upon one
particular ingredient, eg demolition of a part.
5. Demolition
of the whole or part of a building is an identifiable activity comprising
purely destructive works. Alteration of a building involves other operations
which may include an element of demolition.
6. In this
case, a free-standing application was made for further works to a listed
building, which had already undergone extensive demolition and was undergoing
reconstruction. Because an earlier permission and consent were being
implemented, the resulting form of the reconstructed building should determine
the background against which the application must be considered.
7. The
principles derived from Furniss v Dawson [1984] AC 474 were
irrelevant. There was no ‘scheme’ to secure compensation and there was a
separate commercial purpose in proceeding earlier on the larger scheme.
8. The agreed
works contain an undoubted element of making good, after demolition of the
chimney breasts, but they go beyond what was incidental to making good after
such removal. Further, the objective of the claimant was to increase
floorspace.
9. Having in
mind how the application was categorised upon receipt by the council and
subsequently treated by the Secretary of State, the works constituted an
alteration to a listed building rather than the pure negative function of the
demolition of a part of the building.
The history of
the claimant’s application has been stated by Russell and Millett LJJ. I need
only refer to some parts of it.
(a) On July 6
1988 the council granted to the predecessor in title of the claimant planning
permission, on stated conditions and in accordance with the plans submitted,
for the proposal described as:
demolition of
all except the facades, chimney breasts and stacks of Qantas House and
redevelopment to provide the buildings described in the plans.
The council on
the same date granted listed building consent under the statutory provisions.
The application had been made in November 1986 with drawings amended on later
dates. The proposal was described as:
demolition of
all except the facade, chimney breasts and stacks and redevelopment to provide
the buildings described as before.
It seems to me
clear that the application for listed building consent which led to the consent
given in 1988 was an application for consent for demolition of parts of the
listed building.
(b) The
application of June 22 1990 was for listed building consent for:
the removal
of the internal chimney breasts at ground, first, second, third, fourth (and by
amendment of 2nd July 1990) fifth floor levels behind the … facades.
Plans and
drawings were submitted for approval with the application. With them there was
a letter from the consultants acting for the claimant dated June 19 1990, which
included the following passages:
Our clients
are proposing to carry out the development authorised by the planning
permission and listed building consent … substantially as permitted but with
alterations which have been discussed … one aspect of those alterations relates
to the chimney breasts … it is our clients’ intention to remove (them) … and
accordingly we hereby make application for Listed Building Consent for the
demolition and removal of those parts of the chimney breasts … Concerning the
merits of this application … we believe that the interior of the building is in
direct contrast to the exterior, being of little merit … the interior of the
building has suffered internally from major alterations … this has obviously
been recognised by the grant of Listed Building Consent for the demolition of
the interior of the building behind the retained facades. The chimney breasts
to which this application relates do not of themselves have any intrinsic merit
…
(c) The council
had not decided whether to refuse or to grant the application by the time when
on October 22 1990 the claimants appealed to the Secretary of State. The
council in December decided that the application ought to be refused and later
submitted to the inspector, who was appointed to determine the appeal on behalf
of the Secretary of State, a statement dated February 15 1991. That statement
included the passage from the letter of English Heritage to the City council
dated July 25 1990, which reads:
… English
Heritage has a policy of presumption against ‘facadism’ in cases of this kind …
This particular listed building does not have fine interiors and that was a
factor in our reluctant acceptance of the original approved scheme. There were,
however, two basic tenets to that scheme. One was that the structural system
adopted would introduce new construction before removing old. The other was
that the chimney stacks and the chimney breasts supporting them would be
retained … the originally approved scheme was designed with these tenets in
mind and when the property changed hands it did so with that consent and no
other. Thus, the new owners presumably bought the property knowing perfectly
well what was allowable and what was not. Since then we have shown ourselves to
be reasonable in our willingness to contemplate changes in detail to suit the
wishes of the new owners, provided that the original tenets are respected … the
chimney stacks are a prominent decorative feature of the building and it would
not be the same, in historic building terms, to have them perched on steel
beams instead of being supported on their proper and original chimney breasts.
Moreover, the chimney breasts have the additional important function of
providing some visual compartmentation, especially at the point where the old
building ends and the new extension starts.
(d) On October
22 1990, in the absence of any decision by the council within the eight-week
statutory period, the claimants appealed to the Secretary of State by whom, on
June 4 1991, the appeal was dismissed. The inspector appointed to determine the
appeal held that the decision turned
interest as to make it desirable to preserve them. He took note of the advice
in para 92 of Circular 8/87, which requires that interior features of interest
should be respected and left in situ wherever possible. It was
structurally possible to retain the chimney breasts and he weighed their
interest against the quality of the interiors that would be created if they
were removed. Para 92 of Circular 8/87 was headed ‘Alterations’ and it reads:
the
alteration of listed buildings requires the greatest skill and care in order to
avoid damage to historic structures to ensure that any additions are in keeping
with other parts of the building, and to see that any new external or internal
features harmonise with their surroundings. Fixed interior features of interest
should be respected and left in situ wherever possible. Their removal
could affect the building as a building of architectural or historic interest
and in such circumstances Listed Building Consent would be required before they
could be removed.
It was this
passage which led Mr Holgate to invite the tribunal to rely upon, or to have
regard to, the way in which the application was categorised by the Secretary of
State when the tribunal was deciding whether the application was an application
for consent for alteration or an application for consent for demolition of part
of a listed building; and, as noted above, the member did have regard to it.
(e) The state
of the site on June 22 1990, the date of the application, was as shown in the
photographs on p76 of the bundle. The interior of the whole building had been
demolished. The facade, stacks and chimney breasts remained and were supported
by temporary steel structures. By December 1990 the permanent steel structure
had been erected which provided support to the chimney stacks, which are
visible from outside the building, and that permanent steel structure would
enable the chimney breasts to be removed as a matter of structural feasibility
at any time thereafter.
(f) On June 4
1991 the date of the dismissal of the appeal by the inspector for the Secretary
of State, the work of construction of the interior was advanced to the point
that the floors were in place and the building was weather tight.
Different
constructions
Different
approaches have been put forward for the construction of the provisions of
section 27 in the Planning (Listed Buildings and Conservation Areas) Act 1990.
In summary, the different approaches are these.
1. The first
was that submitted to the tribunal for the claimant and accepted by the member
as set out in the summary of the decision above. In essence, the planning
authority must decide the question, alteration or demolition, having regard to
all the circumstances, including the entire scheme of redevelopment, if any,
which will be completed, the objective of the claimant in seeking consent to
demolish any part, and the way in which the application was categorised by the
planning authority or by the
the listed building if the element of demolition is predominant, and it is an
application for consent for alteration of the building if the element of
alteration is predominant. No principle according to which, for this purpose,
‘dominance’ is to be judged has been suggested, ie whether demolition of a
significant part of a listed building is weightier than making use of the space
provided by the demolition.
2. For the
council it was contended that the tribunal must look at the application and ask
‘for what is this an application’? It must be an application for consent for
the demolition of part of a listed building, and therefore not an application
for listed building consent for the alteration of the building, if the proposal
includes demolition of any part or of any significant part of the structure.
This submission was sharpened by the contention in the notice of appeal that,
if an application for listed building consent proposes the removal of any part
of the building without replacement of it, the application in law must be
characterised as an application for consent for demolition and not for
alteration.
3. In the
course of the hearing Millett LJ invited consideration by counsel of a third
approach, which was adopted on behalf of the claimant by Mr Holgate. In brief
summary it was as follows: demolition of part of the building cannot be
alteration of part of the building; but demolition of a part of a building,
with or without replacement of that part, may constitute alteration of a whole
building. Therefore, the question for the tribunal was whether what will be
left after demolition of the part constitutes a significant part of the listed
building so that the application can be regarded fairly as an application to
alter the listed building by demolishing and replacing part.
First
impression
There has been
reference on both sides in this case to the ‘ordinary meaning of words in the
English language’ and to ‘common-sense principles’. The member spoke in his
decision of the necessary judgment being one of ‘impression’. For my part, the
clear impression which I got on looking at the application of June 22 1990, in
the context of its accompanying documents, was and is that the claimant thereby
applied for listed building consent for demolition of part of the building,
namely the internal chimney breasts. If that permission were granted, there
would be consequential works of alteration to the listed building. There is no
doubt as to what those works were: in annexure A the works were set out as
including in-filling to provide a continuous floor area, by means including
additional reinforcing bars drilled into the surrounding structural concrete;
and other works such as the repositioning of air conditioning units and duct
work, and a new area of suspended ceiling with electrical wiring. In
particular, it was agreed that all the proposed works were necessary if
the chimney breasts were removed. It therefore seemed clear to me that, in form
and in substance, the claimant sought listed building consent to demolish part
of the listed building. Such need as there was to obtain consent for the rest
of the work proposed, or to do
necessary if the demolition was permitted and carried out. In the context of
this Act it seems obvious to me that the dominant purpose of the application,
in the sense of what the application was for, was consent for demolition of the
chimney breasts. The necessary works were ancillary, or followed on as
necessary, works if the demolition was permitted to take place. Upon carrying
out of the demolition, the mere ancillary works would not by themselves require
listed building consent because making good the floor and air conditioning,
etc, could not affect the character of the building as a building of special
architectural or historic interest.
Construction
of the statutory provisions
I have stated
the impression which I obtained on looking at the application for listed
building consent. As to the construction of section 27 I prefer the substance
of the contention put forward for the council for the reasons which follow:
1. The 1990
Act is a consolidation Act. The provisions of section 27, with which the court
is primarily concerned, were formerly contained in sections 171 and 173 of the
Town and Country Planning Act 1971. Apart from the case of R v North
Hertfordshire District Council to which the member referred, a decision of
Comyn J, we were referred to no authority upon the construction of the section.
2. I agree
that section 27(1), if read without regard to the preceding sections, appears
to create a right to compensation upon refusal of listed building consent for
the alteration of a listed building even if the proposed alteration consists of
or includes demolition of part of the building. The section makes no reference
to demolition and demolition of a part may, I think, constitute alteration of
the whole.
3. The
substance and effect of the right to compensation or refusal of listed building
consent for alteration of the building is that, if the planning authority
refuses consent, and the decision is upheld on appeal, or if the application is
refused on reference of it to the Secretary of State; and if the requirements
of section 27(1)(b) are satisfied; the planning authority must pay the amount
by which the interest of the owner in the building is reduced by the refusal.
The effect of
section 27(1)(b) is that refusal only gives rise to the obligation to pay
compensation if the proposed works either do not constitute development or, if
they do so, planning permission is granted by development order. It was agreed
in this case before the tribunal that this requirement was satisfied and
neither side has suggested that any assistance on the issues of construction
can be derived from the provisions of section 27(1)(b).
Where the
proposed work set out in an application for listed building consent for the
alteration of a listed building includes demolition of part of that listed
building–and in particular where the part proposed to be demolished is of
significance to the character of the building as of special architectural or
historic interest–it would seem that, if alteration may include demolition of
part, the obligation of the planning authority to pay
of that significant part, would depend upon the nature and extent of the other
works in which the proposed demolition is included. It is not clear to me what
policy considerations would require that result.
4. The proper
construction of section 27 depends upon the preceding sections which provide
the statutory context in which section 27 is to be construed. In section 7 a
distinction is drawn between works for the demolition of a listed building,
which (by section 91) includes any part thereof, on the one hand, and works for
its alteration or extension in any manner which would affect its character as a
building of special architectural or historic interest, on the other hand. Works
in either category are prohibited unless authorised.
5. The
distinction between works for alteration or extension and works for demolition
is elaborated in section 8 which deals with authorisation of works. By
subsection (1), works for alteration or extension are authorised if written
consent has been granted and if the terms of the consent are complied with. By
subsection (2), however, works for the demolition of the listed building, or
part of it, are authorised if, in addition to the requirement of written
consent and compliance with the terms of it, notice of the proposal to execute
the works has been given to the Royal Commission and, after such notice, and
before commencement of the works, reasonable access to the building has been
made available to the Royal Commission etc. It is a criminal offence under
section 9 to carry out works in contravention of section 7.
6. It seems to
me that work for demolition of part of a listed building is thus treated as
distinct from works for alteration and not as something capable of being
included in and treated as part of the works for alteration. If the consent for
work for alteration is granted, and the works could lawfully include demolition
of part of the building and all the works are authorised under section 8, it
seems to me that there would be no obligation upon anyone to give notice, etc
of the proposal to the Royal Commission. It cannot, I think, be supposed that
the intention of Parliament was to make no requirement of notice in the case of
demolition of part only of a listed building however significant that part may
be. If that were the legislative purpose it would, I think, have been expressly
stated. It is true, of course, that under section 27(1)(b) the works in respect
of which a refusal of consent will give rise to compensation, are limited to
those which do not constitute development or are permitted by development
order. But that limitation is irrelevant to the requirement for authorisation
under section 8. Works which are properly regarded as works for alteration,
whatever the scope of them, may lawfully be executed under section 8(1) if
written consent is given and no requirement of notice to the Royal Commission
will arise.
7. I have
therefore reached the conclusion that when section 27(1)(a) refers to ‘an
application for … consent for the alteration … of a listed building’ the words
in their context do not include an application for consent for works which
consist of or include demolition of part of the building.
8. I do not,
however, accept that the category of works for the demolition of part of a
listed building includes all or any work for the removal of any part of a
listed building without replacement. The notion of demolition is not apt to
include all and any work of removal of part. For example, the removal of part
of a wall for insertion of windows or of doors would not, I think, properly be
regarded as demolition of part of the building, but as alteration of it.
9. I would
therefore hold that the member erred in law in his reasoning and in his
conclusion. The application of June 1990 was in form, and in substance, an
application for listed building consent for the demolition of the chimney
breasts. If consent had been given in respect of it, the claimant would have
been required to comply with section 8(2). Upon refusal it remained an
application for consent for demolition of the chimney breasts.
10. If I am
right so far, the remaining points arising upon the decision of the member do
not matter. I shall deal with them briefly.
(a) I can see
no force in the point that one construction or another would mean that
alterations would rarely attract compensation, or more often attract
compensation. The inquiry in this case is to determine whether the intention of
Parliament as expressed in the statute provides for compensation in the
circumstances proved.
(b) The
council cannot, in my view, derive any assistance from the principles
established in Furniss v Dawson. As I understand the law, 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.
(c) To limit
the concept of demolition of part of a building to an activity comprising
purely destructive work is I think, impossible in the context of this Act. It is
difficult to think of circumstances in which an owner would wish to demolish
part of a listed building without also carrying out the work of making good
made necessary by the demolition.
(d) The member
said that the ‘agreed works contain an undoubted element of making good after
demolition of the chimney breasts but they go beyond matters incidental to
making good after such removal. Further, the objective of the claimant was to
increase floorspace’. There is, in my view, no relevance in the objective of the
claimant: the nature of the application is to be decided as at the date of the
application by reference to the terms of it. Further, the reference to the
‘agreed works’ was, as I understand it, to annexure A to the decision which, as
stated above, contained an agreement between the parties as to the structural
works to be carried out if the chimney breasts were removed. As pointed out
above, all the works were agreed to be ‘necessary’ if the chimney breasts were
to be removed in December 1992. I am unable to understand how those works can
be regarded, whether at the date of the application in June 1990, or at the
date of refusal in June 1991, as going beyond matters incidental to ‘removal of
the chimney breasts’. In 1990 the listed work consisted of changes to the
proposed work to the interior necessary if consent to demolish the chimney
stacks were given. In 1991 the listed work consisted of changes to work already
done, or remaining to be done, made necessary if consent to demolish the
chimney stacks were given.
(e) The
member, in reaching his decision, said that he was:
taking a
balanced view of the facts and the evidence relating to the background to the
proposals also being mindful of how the application was categorised upon
receipt by the City Council and subsequently treated by the Secretary of State.
This reference
to ‘how the application was categorised’ was, in my view, a misdirection in
law. The way in which officers of the council referred to or described the
application or the way in which the inspector, appointed to decide the appeal
on behalf of the Secretary of State, referred to the application cannot be
relevant to the question whether or not the application was ‘made for Listed
Building Consent for the alteration of a listed building’. Further, there was,
in my view, no substance or weight in the reference on which the inspector was
invited to rely. In particular, in mentioning para 92 of Circular 8/87, which I
have set out above with its heading, the inspector was not addressing the question
whether the application was to be categorised as an application for listed
building consent for the alteration of a listed building, on the one hand, or
for the demolition for part of the listed building, on the other hand, but the
question whether it was reasonable for the chimney breasts to be preserved.
Appeal
allowed.
