Building contract – Conservation area consent – Demolition – Appellant property owner failing to obtain conservation area consent before commencement of works under building contract – Works being delayed – Court holding appellant responsible for loss and expense caused by delay – Whether judge adopting wrong approach in determining when construction works amounted to demolition requiring conservation area consent – Appeal dismissed
The appellant owned a residential property now known as 50 Palace Gardens Terrace, Kensington, London. In September 2012, he contracted with the respondent to carry out demolition, refurbishment and reconstruction works to form a single residence out of numbers 48 and 50. The works commenced in March 2013 but were suspended in August after the local authority said that conservation area consent (CAC), which had not been sought by the appellant, was required. The works recommenced in August 2014, after the appellant obtained the relevant permission.
A dispute arose as to where contractual responsibility for the delay fell. The High Court held that the works amounted to demolition such that CAC was required. The judge declared that the appellant was liable to compensate the respondent for the loss and expense caused by the delay because he had breached his implied obligation under the contract to make a timely application for CAC before the necessary demolition work could proceed: [2019] EWHC 945 (TCC).
The appellant appealed, contending that the judge: (i) should have concluded, by reference to the underlying purpose of the statutory scheme relating to conservation areas, that it was appropriate to consider whether the demolition involved a significant and/or substantial impact on the character and appearance of the conservation area (sections 69, 72 and 74 of the Planning (Listed Buildings and Conservation Areas) Act 1990); (ii) erred in law and fact in concluding that the retention of the party walls with adjoining properties, together with most of the front elevation and a large part of the rear elevation, did not preclude a conclusion that there was demolition under section 74 of the 1990 Act; and (iii) concluded that there was substantial demolition under section 74 based on erroneous considerations or reasons which undermined that conclusion.
Held: The appeal was dismissed.
(1) According to its ordinary meaning, the word “demolish” when used in reference to a building meant to pull the building down, ie to destroy it completely and break it up. Its destruction and breaking up could not constitute a mere alteration. The concepts of “demolition” and “alteration” were mutually exclusive.
The question of what constituted demolition was one of fact and degree which had to be decided on the facts of each case. It was not necessary for every part of the building to be removed. Works involving the removal of so much of the old building as to clear a site for redevelopment could amount to demolition. The question of whether or not demolition of a building was involved was a question of fact and degree to be assessed on a quantitative basis, ie by reference to the extent of the demolition. There was no suggestion that there was any qualitative exercise (by reference to impact on the character or appearance of the surroundings or otherwise) to be carried out. That applied to the conservation area regime in Part II of the 1990 Act just as it did to the listed building regime in Part I: Shimizu (UK) Ltd v Westminster City Council [1997] 1 WLR 168; [1997] PLSCS 42 followed.
(2) Section 72 of the 1990 Act set out the general duty relating to conservation areas in the exercise of planning functions. Special attention had to be paid to the desirability of preserving or enhancing the character or appearance of that area. It did not require a planning authority (or court) when determining whether or not CAC was required (as opposed to whether CAC should be granted) to carry out a qualitative exercise by reference to considerations of character and appearance. The assessment of whether works amounted to demolition was a quantitative exercise. Character and appearance were not relevant to that question.
Although there were two questions to consider under section 74 (namely whether CAC was required and, if so, whether it should be granted), the planning authority was performing a single function, namely controlling the demolition of buildings in a conservation area. On the second question, when deciding whether or not to grant CAC, special attention had to be paid to the desirability of preserving or enhancing the character or appearance of the conservation area. In that way, section 72 was properly respected, and the purpose and intent of the legislative scheme as a whole fulfilled.
Parliament was unlikely to have intended the matters identified in section 72 to be considered twice, first when assessing the threshold question of demolition and again for the purpose of considering whether to grant CAC. The concept of paying special attention to the desirability of preserving or enhancing character or appearance was not apt in the context of what was a fact-finding exercise as to whether or not a building was being demolished. It involved questions which went beyond simple questions of fact and degree. There was no logical connection between the question of demolition and questions of character and appearance. On the other hand, the concept fitted neatly into a consideration of whether or not to grant CAC for the works.
It would be unrealistic to place on developers the burden of assessing the impact of proposed works on the character or appearance of a conservation area in order to identify whether or not CAC was required. That was a multi-factorial question to be considered by reference potentially to a very wide range of considerations, including the scope of the conservation area, its demographic and population, the nature of any surrounding buildings and their occupation. The qualitative assessment was pre-eminently a matter for the planning authority.
(3) There was no proper basis for interfering with the judge’s finding on the facts that the works amounted to demolition of the building for the purpose of section 74. He correctly identified the law and clearly understood the correct test to be applied. In referring to “substantial demolition” he was doing no more than adopting a shorthand for that test. A property in a terrace (with sidewalls, facades and chimneys being maintained) could nevertheless be demolished: Shimizu followed.
Vincent Moran QC, James Maurici QC and Tom Coulson (instructed by Eversheds Sutherland LLP) appeared for the appellant; David Thomas QC, Rupert Warren QC and Matthew Finn (instructed by Pinsent Masons LLP) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Walter Lilly & Co Ltd v Clin
