England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		18th April 2008

1. LORD JUSTICE KEENE: This appeal raises a short but important point about the correct approach in law to offences involving the alteration of a listed building. It comes by way of a case stated by the Beverley and The Wolds Magistrates' Court where, on 21st August 2007 District Judge (Magistrates' Court) Curtis found the respondent not guilty of an offence under section 9 of the Planning (Listed Buildings and Conservation Areas) Act 1990 ("the 1990 Act"). The planning authority as prosecutor now appeals.
2. Buildings of special architectural or historic interest are protected in this country by the 1990 Act. The Secretary of State is required to compile lists of such buildings, and it is a criminal offence under section 9 to execute certain types of works in relation to a listed building without first obtaining the authorisation of a Listed Building Consent through the procedures set out in the Act. Section 9(1) makes it an offence to contravene section 7, with the result that it is the latter section on which one needs to concentrate for the purposes of this appeal.
3. Section 7 provides as follows:

"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."

I can say at this stage that the following provisions of the Act have no great impact upon the definition of that offence, save that some of them have been prayed in aid as of potential assistance to the interpretation of section 7. To those matters I shall come.

4. The facts in the present case can be obtained from the case stated and its attachments. The buildings, known as the Old Mill at Wansford, Driffield in the East Riding of Yorkshire are listed Grade II. They consist of three contiguous elements: the old water mill itself (also known as the Mill House), a farmhouse, and an attached east range of buildings, also referred to as the "stable block". This case is principally concerned with actions taken in respect of the last of those three, the stable block, a block of single storey buildings built in the late 19th century. That stable block is not specifically mentioned in the listing, but there is no dispute that it forms part of the listed building as a matter of law.
5. On 9th June 2005 the respondent, an architect who had been engaged by the owner of the buildings, was granted Listed Building Consent for extensions and alterations of the listed building. The works in question included what the District Judge described as substantial alterations to the main mill house, plus a two storey extension at the rear and a front porch. Some windows were to be replaced. The consent also covered certain alterations to the stable block. Those were the dismantling of the roof and its reconstruction at a higher level, with the wall plate consequently being raised as well and the eaves and gable brickwork being remodelled.
6. However, the works carried out towards the end of 2005 and into the beginning of 2006 to the stable block went substantially beyond those permitted by the consent. By the end of December 2005 and the beginning of January 2006 the stable block had been largely dismantled, and soon afterwards it was wholly dismantled. Then in the following months of the spring and summer of 2006, works of reconstruction were carried out and seem to have been completed later that year. Some of the original bricks were reused in that reconstruction but it was impossible to assess what percentage. The end result was a new linear block of buildings where the stable block had previously existed.
7. The appellant authority laid an information charging the respondent with executing, or causing to be executed, works to a listed building for its alteration (namely the Old Mill, Wansford, Driffield) in a manner which would affect its character as a building of special architectural or historic interest in that he wholly dismantled a range of single storey buildings attached to the Old Mill without being authorised to do so, contrary to section 7 of the 1990 Act. Most of the ingredients of that offence were admitted. Thus, it was admitted that the respondent had caused works of alteration to a listed building to be executed, and also that such works were unauthorised because such walls and parts of walls of the stable block as were shown in the consented scheme as being retained were instead dismantled and rebuilt.
8. It is to be observed in passing that the appellant was almost certainly right to describe in the information what had been done as alteration rather than "demolition", since normally the demolition of part of a listed building constitutes an alteration of that building, not its demolition: see the House of Lords' decision in Shimizu (UK) Ltd v Westminster City Council [1997] 1 AER 481. I also note that Lord Hope in that case observed that where the works in question involved pulling down almost all of a listed building, it was a question of fact for the Tribunal involved to decide whether that amounted to demolition or alteration (see page 498 J ).
9. The distinction is of some significance because, as Lord Hope in the same case commented at page 494 E to F, in cases of the demolition of a listed building, section 7 does not require it to be proved that the work has affected the character of the building as one of special architectural or historic interest. The removal of the entire building is bound to affect that character. In contrast:

"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."

By that reference to the qualification in section 7, Lord Hope was referring to the fact that in cases of alteration to a listed building, an offence is only committed if the works for its alteration are executed in a manner which affect its character as a building of special architectural or historic interest.

10. That was what gave rise to the issue in the present case. In particular, the question arose: did the works for the alteration of this listed building affect its character as such a building? This in the event turned upon what was taken into account as constituting the "works for its alteration". The prosecution argued that those works should not be taken to encompass both the dismantling and the rebuilding of the stable block. The dismantling by itself constituted such works, and they affected the character of the listed building, taken as a whole. The District Judge seemed to have accepted that, if one confined one's consideration to that stage in the works, then they did affect the listed building's character as one of special architectural or historic interest. Expert evidence was called on both sides and the judge agreed with the view expressed to that effect by the prosecution expert.
11. However, the judge rejected that as an approach. He accepted the argument advanced on behalf of the present respondent that the dismantling was part of a larger scheme of alteration which included the reconstruction of the stable block. On that basis, and taking the reconstruction into account, he found that the works had not affected the special architectural or historic character of the building as a whole. His findings as to the effect on the character of the listed building of (a) the dismantling alone, and (b) the dismantling and reconstruction together, were based upon evidence, involved inevitably a degree of judgment and cannot sensibly be questioned in this court. Neither party seeks to question the judge's findings in those respects.
12. The issue thus neatly becomes one as to whether the judge's approach was right as a matter of law. The question posed for this court at the end of the case stated is as follows:

"Where a defendant is charged with effecting unauthorised works of alteration by dismantling part of a listed building, was I wrong in law to decline to limit my consideration to those works as charged or was I correct in considering further unauthorised works of reconstruction or restoration to judge the effect on the special architectural or historic character of the building."

The judge was, I should say, accurate in referring there to "those works as charged", since the information laid by the planning authority simply referred to the dismantling of the stable block. That is how the authority has chosen to formulate the charge.

13. On behalf of the appellant, Mr Peter Harrison QC contends that the District Judge was wrong in law. He emphasises that the wording used in section 7 refers to the execution of "any works" for the alteration of a listed building which affect its character and which are unauthorised. It does not delineate a period of time over which the effect on that character is to be assessed. Once it is found that the dismantling works by themselves affected that character, that one remaining element of the offence was proved. It is submitted that the subsequent works (a) were rebuilding and not alteration, and (b) came subsequent to the commission of the offence and went only to mitigation of sentence.
14. In the course of argument Mr Harrison chose not to advance the first of those two aspects. There is no magic in the word "rebuilding". He places particular emphasis on the way in which section 38(1) of the Act is worded. That provides:

"Where it appears to the local planning authority --

(a) that any works have been or are being executed to a listed building in their area; and

(b) that the works are such as to involve a contravention of section 9(1) or (2),

they may, if they consider it expedient to do so having regard to the effect of the works on the character of the building as one of special architectural or historic interest, issue a notice under this section (in this Act referred to as a 'listed building enforcement notice')."

That, Mr Harrison submits, gives the planning authority the power to intervene while works are in progress and implies that one should focus on the works as at that stage and not at some future date. It is argued that if the judge were right, the planning authority would have to wait until the works of replacement or rebuilding were done, and that would seem to be contrary to the legislative intention. It would significantly diminish the degree of protection given to listed buildings in this country. A similar point is made on behalf of the appellant about the obtaining by a planning authority of an injunction under section 44A. That power, again, it is said, could not be exercised if the District Judge is right.

15. Mr Machin, for the respondent, submits that it is not open to a prosecutor to select one element in a package of unauthorised works and to demand that the remainder be left out of account. He is not entitled to freeze an assessment of a process of alteration at a stage part way through and require an effect on the character of a building to be judged at that stage.
16. As for the argument about section 38, Mr Machin submits that the judge's approach here would not necessarily have the effect of forcing a prosecuting authority to wait until the completion of unauthorised works before determining whether an offence has been committed. They have to wait only until it is possible to assess whether the works have affected, or will affect, the character of the building. The point in time at which that becomes possible will vary from case to case. There is, he says, nothing unsatisfactory about that. The situation merely reflects every day reality and respects the words of the statute. The wording of section 7, it is contended, is significant. Is uses the phrase "any manner which would affect its character" and that embodies an element of futurity.
17. There is, so far as I have been able to discover (and as the researches of counsel patently have been able to discover), no authority directly on this point or even one providing helpful guidance. But I bear in mind that the purpose of these statutory provisions is to protect the special character of listed buildings and that, by their nature, these are entities which endure for some time. The law is not concerned with their transient or temporary position, if such it is. This requires a realistic and practical approach to the use of the words "any works" and the words "in any manner" in section 7. If what is being done by way of works or alteration to a listed building involves both a stage of removal and dismantling and a stage of replacement or rebuilding, it cannot, in my judgment, be right to cease the assessment of the effect of these works of alteration in an artificial manner part of the way through.
18. To take a simple example by way of illustration which was canvassed in the course of argument, which derives from the facts of the case of R v Sandhu [1998] 1 PLR 17, if an owner of a listed dwelling proceeds without Listed Building Consent to replace some windows, there can be little doubt that at the stage when the building is windowless, its special listed character would be affected, and indeed adversely so. But by the time that he has finished that process and replaced the old windows with new ones, perhaps more in keeping with the architectural or historic character of the building, it may well be that there is no effect on that character of any materiality at all.
19. Is it open to the planning authority to prosecute on the basis of the works of removal and their effect and to require the court to ignore the replacement stage? I do not believe that it is. But were the appellant's approach to prevail, the owner would be guilty of a criminal offence. What public benefit would have been achieved by that when the end result in the hypothetical case suggested would have been benign? Parliament has deliberately chosen not to criminalise all works of alteration to a listed building. It has qualified the position, as Lord Hope pointed out, so that only works of alteration which affect, or would effect, the character of the listed building are caught. Any court of law faced with that issue cannot decide it until it has first determined what the works of alteration consist of. That is a question of fact for the court -- or in some cases, no doubt, the Planning Inspector -- to determine. That is a crucial question to be decided.
20. In a case like the present, deciding it may well involve, in particular, asking whether the works are to be seen as including some replacement or rebuilding activity. I emphasise again, that is a matter of fact for the decision-maker to determine, but it is a necessary step on the road to deciding whether the works of alteration affect the special character of the building. That determination may be influenced by a number of factors. Thus, if there was some appreciable time gap between works of removal or dismantling on the one hand and any replacement or rebuilding activity on the other, the court might take the view that those two elements were separate and distinct and that only the former constituted the works of alteration. Particularly would that be likely to be so if there was evidence that the replacement or rebuilding works had only come about because of some step taken or warning given by the planning authority, or other evidence of an intention not to proceed with such later works for the time being.
21. Persuasively put as it was, I do not accept that this approach inhibits the planning authority in the exercise of its powers to serve an enforcement notice or to seek an injunction under sections 38 and 44A respectively. It is entitled to seek to intervene while works are in progress, and may do so even at an early stage if the facts appear to it to justify it. But such action may well then give rise to a hearing before an Inspector or a court where the question will be whether the works would affect the special character of the listed building. That flows from the reference in both section 38 and section 44A to section 9, and hence to section 7 which uses the words "would affect". Again, there would arise a question of fact as to what the works consist of. That is so, even where the works in the words of section 38(1) "are being executed". What are the works? Not necessarily just those which have already taken place.
22. Of course, if the person adjudicating is to take into account some future element of work in such a situation, he will no doubt require to be presented with convincing evidence that the works do consist of more than has so far taken place. Architect's drawings and/or builders' contracts may well be needed if the Adjudicator is to be persuaded to that effect. But he is not, in my view, required to close his eyes to that part of the works not yet carried out.
23. Here in the present case, the planning authority did not intervene while the works were in progress. The District Judge had the advantage of assessing the final product. But the authority could have chosen to intervene at an earlier stage by an enforcement notice or proceedings for an injunction, and the court then would have been faced with determining whether the works of alteration, when carried out, would affect the listed building's character.
24. I conclude that the District Judge was right in his approach. But I would add two observations. First, nothing in this judgment should be taken as encouraging owners of listed buildings to carry out such works of alteration without consent, unless they are obviously works which will not affect the character of the building as one of special interest. To embark upon works of alteration without consent runs the considerable risk that, even after the replacement or rebuilding stage, it will be held that that character has been affected and then a criminal offence will, as a result, have been committed. That risk did not materialise in the present case, but it might have done. Indeed, in my initial reading of the facts I was somewhat taken aback by the disregard of planning controls involved, but the judge has found here that the works completed to the stable block did not affect the character of the listed building and it is not argued that that finding was perverse or otherwise not open to him. This court has to respect that finding therefore.
25. Secondly, none of this applies to the demolition of a listed building. As I have earlier pointed out, to demolish a listed building without consent is an offence without any issue about the effect upon its special character. Nonetheless, having made those points, it remains only for me to say that I agree with the District Judge's approach. I would answer the question posed at the end of the case stated in the negative, that is to say he was not wrong in law and I would dismiss this appeal.
26. MR JUSTICE TREACY: I agree.
27. MR MACHIN: My Lord, thank you. I hope to recover my client's costs. I think in that regard you have the option of either directing that they be paid out of central funds or you can order costs against the appellant counsel. I suggest there is a detailed assessment.
28. LORD JUSTICE KEENE: Mr Harrison?
29. MR HARRISON: My Lord, if you do have the option of awarding them out of central funds it is obviously the preferable course. However, I accept that we put the case before your Lordship, we lost and the usual rule should follow. We have not been served with a schedule to allow for detailed assessment. We served a schedule the other way.
30. MR MACHIN: We had not, in fact, received a schedule.
31. LORD JUSTICE KEENE: It is a pity to have to go to detailed assessment. That in itself runs up additional costs. That is the whole point of serving a schedule in relatively short cases but there we are.
32. Mr Harrison, we think the order ought to be made against your authority.
33. MR HARRISON: My Lord, in that case it will have to go to detailed assessment, I am afraid.
34. LORD JUSTICE KEENE: Yes.
35. MR HARRISON: My Lords, I do have two further applications. The first is that I ask your Lordships to certify this as a matter of public importance. Your Lordship has indicated in the judgment that this is a short but important point and, in my submission, it is obvious from the facts that it will have ramifications beyond the facts of this case.
36. LORD JUSTICE KEENE: Have you formulated the point in any written form?
37. MR HARRISON: My Lord, in this sense, if I go to page 2 of my skeleton.
38. LORD JUSTICE KEENE: Yes.
39. MR HARRISON: It is an amendment to the question in the case stated, is what I am suggesting.
40. LORD JUSTICE KEENE: Yes. Page 2?
41. MR HARRISON: Page 2, bottom right-hand corner, paragraph 3.
42. LORD JUSTICE KEENE: You mean the question actually posed in the case?
43. MR HARRISON: Yes, but with these amendments. I apologise for not being able to provide them in written form immediately. "Where a defendant is charged with affecting unauthorised works of alteration by dismantling part of a listed building, is the Magistrates' Court determining the case or a jury?"
44. LORD JUSTICE KEENE: Shall we just say "is the court"?
45. MR HARRISON: I had initially thought that, yes. "Is the court entitled to decline to limit its consideration to those works as charged or is it entitled to consider further unauthorised works of reconstructional restoration to judge the effect on the special architectural or historic character of the building?"
46. LORD JUSTICE KEENE: I would want to add, myself, for clarity "if it finds that the latter works form part of the works of alteration". I think that raises the issue as put in our judgments.
47. MR HARRISON: My Lord, yes. The latter works form part of the works of alteration, yes.
48. LORD JUSTICE KEENE: Shall we have a reference to section 7?
49. MR HARRISON: My Lord, yes. Where a defendant is charged with an offence under section 7.
50. MR MACHIN: It should be offences of section 9(1) of section 7.
51. MR HARRISON: I do not think you can have an offence under section 9(1) of section 7.
52. LORD JUSTICE KEENE: You might like to spell this out and give it to the associate when we have risen. "Where a defendant is charged with an offence under section 9(1) of the -- then the full title of the 1990 Act -- of effecting unauthorised works". Then it can run on the way that you put it. That will bring in section 7 because section 9(1) does it itself. Does that seem adequate?
53. MR HARRISON: Yes.
54. LORD JUSTICE KEENE: What do you want to say about that, Mr Machin?
55. MR MACHIN: I did not contemplate it going any further but I leave it to your Lordships whether you think that is a point of public importance of sufficient gravity. If it is, I make no comments.
56. LORD JUSTICE KEENE: We are prepared to certify. Do you have a further application?
57. MR HARRISON: There is one, my Lord, but I am afraid it is not in my head at the moment.
58. LORD JUSTICE KEENE: You presumably wanted leave to appeal.
59. MR HARRISON: My Lord, yes.
60. LORD JUSTICE KEENE: The certificate is a necessary condition of that but you do seek both. The certificate you can only get from us but you can get leave either from us or the House of Lords.
61. MR HARRISON: Well, I seek your Lordships' leave to appeal as well.
62. LORD JUSTICE KEENE: No, we refuse you leave. We think it is up to their Lordships' House to decide whether they wish to take this point.
63. MR HARRISON: In those circumstances, my Lord, I do have a second application, that the time for making that application for leave to appeal starts to run from time we receive a transcript of your Lordship's judgment.
64. LORD JUSTICE KEENE: I assume we have a power to do that, do we?
65. MR HARRISON: I do apologise, my Lord, I had not looked that point up, except I have had leave given for that in similar circumstances but not for the House of lords.
66. LORD JUSTICE KEENE: It is 14 days as things stand.
67. MR HARRISON: My Lord, yes. Clearly it would be advantageous to draft a petition with the full transcript.
68. LORD JUSTICE KEENE: Yes. Do you want to say anything on that at all, Mr Machin?
69. MR MACHIN: No. It certainly seems a reasonable request.
70. LORD JUSTICE KEENE: If we have that power we will make an order to that effect: 14 days to run from the date when you receive the transcript. If it assists you I will correct and approve the transcript as soon as can be.
71. MR HARRISON: I am grateful. I think that is everything.
72. LORD JUSTICE KEENE: Thank you both very much indeed. It is a very interesting point.