Judgments - Her Majesty's Commissioners of Customs and Excise (Appellants) v. Zielinski Baker & Partners Limited (Respondents)

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    60.  Para 39 of Rix LJ's judgment, at p 841, is also important:

    "Item 2 introduces the concept of an 'approved alteration of a protected building'. It is possible to found an important part of reasoning in favour of the commissioners on the fact that the alteration in this case was in a practical sense to the outbuilding, not to the house … . I am concerned, however, that this is to misstate the legal position. Given that the 'approved alteration' in question is an alteration which cannot be carried out unless authorised under the 1990 Act (as note (6) confirms) and that that Act is the statute which provides the definition of a listed building as one that includes (in our case) the outbuilding, it is in my judgment more natural to consider that the 'approved alteration' is an alteration to the house, which is after all the building which is listed."

    61.  This paragraph is central to the reasoning of the majority below and necessarily represents a core element of the taxpayers' argument. If, indeed, the alteration carried out in this case, although "in a practical sense to the outbuilding", is "more natural[ly]" to be considered an alteration to the house, then clearly it is the alteration of a protected building and so attracts zero rating. To my mind, however, there can be no escaping the plain fact that the actual building altered here was the outbuilding and not the house. True it is that the requirement for these works to be authorised rested upon the fact that, under the extended definition of "listed building" in section 1(5) of the 1990 Act, a listed building was being altered. That, however, appears to me an insufficient basis for ignoring the simple physical reality, namely that here it was the outbuilding itself which was being altered. It is to the actual work of alteration that item 2 is directed. Either the building which is itself being altered is a protected building as defined or it is not. Here it was not.

    62.  I have had the advantage of reading in draft the speech of my noble and learned friend Lord Walker of Gestingthorpe. I agree with it.

    63.  I too would allow this appeal.


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