ON APPEAL FROM THE CANTERBURY COUNTY COURT
MR RECORDER GERLIS
B CT 01090
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE AIKENS
| ROBERT BARRATT
|- and -
|ASHFORD BOROUGH COUNCIL
MR CHARLES MYNORS and MR PAUL TAPSELL (instructed by Head of Legal and Democratic Services, Ashford Borough Council) for the Respondent
Hearing date: 16th December 2010
Crown Copyright ©
Lord Justice Mummery:
The preliminary issue
"1(1) For the purposes of this Act and with a view to the guidance of local planning authorities in the performance of their functions under this Act and the principal Act in relation to buildings of special architectural or historic interest, the Secretary of State shall compile lists of such buildings, or approve, with or without modifications, such lists compiled by the Historic and Monuments Commission for England (in this Act referred to as "the Commission") or by other persons or bodies of persons and may amend any list so compiled or approved."
"…a building which is for the time being included in a list compiled or approved by the Secretary of State under this section…"
"…whether at the date of the application for an injunction [the property] at Hayes Cottage, Ebony Road, Tenterden, Kent was a listed building."
Trial and judgment
" ..the Act assumes, in regard to the statutory procedures, that the question of whether or not a building is a listed building can be determined simply by inspecting the list which the Secretary of State has prepared.[pp 1451H-1452A]
But the form of notice does not require a description of the building to be given. The assumption is that the name of the building will be sufficient to identify what is in the list [p. 1452E]
I would regard the columns headed "Description" and "References", while informative, as subservient to the column headed "Name of Building." In my opinion it is the latter column which serves the statutory function of identifying the listed building in the list which the Secretary of State is required to keep available for public inspection under section 52(6) of the Act of 1972. In their printed case the applicants state that the inclusion of the words of limitation in this column reflects a practice of compiling the list so that the "Name of Building" column is the official entry which defines the scope of the listing. That observation is consistent with my understanding of the list.[p. 1453B-C]
…I think that it is permissible to examine the contents of the column headed "Description" in order to see whether it can help to resolve the ambiguity. [p. 1454C-D]
I should like, finally, to add this further observation in regard to the ambiguity in the list. The problem which has arisen in this case suggests that the list, even in its new form, may require some reconsideration in order to remove such ambiguities. It is important that words of limitation that are used to exclude parts of a building from the statutory listing are sufficiently clear to enable those who are interested to identify what parts of the building are subject to the statutory controls and what are not. The fact that the controls are the subject of criminal sanctions provides an added reason for seeking greater clarity in the composition of the list than has been exhibited in this case" [p. 1454 G-H].
Discussion and conclusions
"Plainly it is desirable to compile the list with sufficient clarity and precision to avoid the kind of question that has arisen here." [p. 1456D]
Lord Justice Richards
Lord Justice Aikens