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  Judgments - Shimizu (U.K.) Ltd. v. Westminster City Council   continued  
 
 
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56.        In the course of his opinion Millett L.J. said that the expression "part of a building" does not appear at all in the 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:
       "17(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."
 
57.     Strictly speaking, the words "or any part of it" in paragraph (c) of this sub-section 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 paragraph (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."
 
58.        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 redevelopment for which the contract provides."
 
59.     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 part would amount to the demolition of the building for the purposes of 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 sub-section 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.
 
60.        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."
 
61.        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. Sub-section (1) of section 74 provides that a building in a conservation area shall not be demolished without the consent of the appropriate authority, and sub-section (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 sub-section (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.

THE MEANING OF "DEMOLITION"

 
62.        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 taken by the member in the Lands Tribunal, that the works which were proposed in this case were works of demolition rather than works of alteration or extension for the purposes of section 27(1).
 
63.        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 L.J. 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.
 
64.        I can see the force of the observation, which appears in the same passage in Millett L.J.'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 L.J. 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 it:
       "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."
 
65.     The provision in the Act which persuaded Millett L.J. 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 demolition, although the procedure may perhaps more accurately be regarded as a 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.
 
66.        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 sub-section (1) of section 8 is satisfied even though notice has not been given to the Royal Commission in accordance with sub-section (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 sub-section (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.
 
67.        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 Departmental 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.
 
68.        As I have said, section 8(2) can be read with perfect sense if the word "building" is taken, in the context of these provisions, to mean simply the 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).
 
69.        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 façade 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 façade 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.
 
70.        We were referred to Lord Diplock's observations in Customs and Excise Commissioners v. Viva Gas Appliances Ltd [1983] 1 W.L.R. 1445, 1451A-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 Departmental Circular 8/87 and in a prior decision in the Queen's Bench Division. In Reg. v. North Hertfordshire District Council, Ex parte Lorana Olcott Sullivan,19 May 1981 [1981] J.P.L. 752, Comyn J. was referred to paragraph 66 of the Department of the Environment's 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)."
 
71.        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.
 
72.        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 (S.I. No. 1519) apply, by a Planning Policy Guidance Note issued by the Department of the Environment and the Department of Natural Heritage in September 1994 (PPG 15) paragraph 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."
 
73.       It follows from what I have said that the advice in that paragraph will require to be re-considered. 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] A.C. 474, on the view that there was a pre-meditated 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 pre-ordained 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 page 9 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 L.J. said that his reasoning could not be supported, as many of the considerations which influenced his decision were irrelevant to the question which he had to 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

 
74.         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.
 
75.         I would therefore allow this appeal and restore the decision of the Lands Tribunal.



 

   

 
 
 
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Prepared 6th February 1997