Judgments - Shimizu (U.K.) Ltd. v. Westminster City Council  continued

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THE 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 1930's. 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   The provisions of the 1947 Act were repealed and substantially re-enacted by sections 30, 32 and 33 of the Town and Country Planning Act 1962.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 planning decisions or orders to require his interest in the land to be acquired 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] A.C. 535 it was held that, while demolition works as such did not require planning permission, works which comprised demolition, site clearance and the erection of a new building on the 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 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] A.C. 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 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 p. 403F-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 parts are treated separately from the whole building? In order to answer these questions it is necessary to review the various provisions of the Act which are relevant to this issue.

THE RELEVANT PROVISIONS OF THE 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 sub-section 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 amounts to works of alteration on the one hand--to which the sub-section will 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 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 Listed Buildings and Conservation Areas Act.

THE 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 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 insofar 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 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 insofar 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 the expression "listed building", in order to see whether the extended meaning 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 sub-sections 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 insofar 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:

       "7. 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 follow 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 a Departmental Circular DOE 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 does not seem sensible to qualify the word still further, if the word "building" here is to mean the building which has been listed--the "listed building" which is referred to in the opening words of sub-section (2)--by taking it as including any part of a listed building. When paragraph (i) refers to the giving of reasonable access to "the building" and paragraph (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 sub-section 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.

 
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