United Kingdom House of Lords Decisions

Shimizu (UK) Ltd v. Westminster City Council [1997] UKHL 3; [1997] 1 WLR 168; [1997] 1 All ER 481 (6th February, 1997)

LORD BROWNE-WILKINSON

My Lords,

   I have had the benefit of reading in draft the speech to be given by my noble and learned friend Lord Hope of Craighead. I agree with it and for the reasons which he gives I would allow this appeal and restore the decision of the Lands Tribunal.

LORD GRIFFITHS

My Lords,

   I have the misfortune to differ from the majority of your Lordships and will therefore express my opinion shortly. I gratefully adopt the history and citation of the relevant sections of the Planning (Listed Buildings and Conservation Areas) Act 1990 set out in the speech of my noble and learned friend Lord Hope of Craighead.

   The Prudential Assurance Company owned a block of buildings on the corner of Bond Street and Piccadilly. Part of the block, known as Qantas House, was a listed building. The obvious reason for the listing was the elegance of the façade of this building; a less obvious reason was apparently the importance of the chimney breasts and chimney stacks contiguous with the façade.

   On the 6th July 1988 the Prudential obtained listed building consent and planning permission to demolish the entire block with the exception of the façade and the chimney breasts and chimney stacks of Qantas House.

   If the Prudential had applied to demolish the whole building including the chimney stacks and chimney breasts retaining only the façade and this had been refused they would not have been entitled to compensation. The Prudential might well have wished for permission to demolish the chimney stacks and breasts because by doing so extra floor space would be available in the new building to be erected behind the façade. However although refusal would have resulted in loss of valuable floor space they would not have been entitled to compensation.

   The building then changed hands and the appellants became the owners. The appellants proceeded to demolish the building in accordance with the listed building consent and by June 1990 all that remained were the façade and the chimney breasts and chimney stacks supported by temporary steel work. The appellants then applied for listed building consent to demolish the internal chimney breasts which was refused on appeal by the Secretary of State. The reason why the appellants wished to demolish the chimney breasts was to provide more floor space which they value at £1,800,000.

   In order to entitle themselves to claim this £1,800,000 of compensation the appellants argue that the demolition of the chimney breasts and the infilling of the voids thereby created in the floors should be regarded not as a demolition of part of a listed building but as an alteration to a listed building the refusal of which entitles them to compensation of £1,800,000.

   Demolition and alteration in the context of this Act are overlapping concepts which must be applied with common sense to the facts of each particular case. In each case it will be a question of fact whether the work in question is to be regarded as demolition or alteration, and it will generally be inappropriate for an Appellate Court to interfere with the finding of fact of the Tribunal. In this case, however, I am unable to accept the finding of the Tribunal that the removal of the chimney breasts was an alteration rather than a demolition.

   If the chimney breasts had been removed as part of the original site clearance they would unarguably have been "demolished". If the appellants had been refused leave to demolish them at that stage, as events prove they would have been, the appellants would have been entitled to no compensation, even though the only reason for wishing to demolish them would be to increase floor space to the value of £1,800,000. Now for the same reason, extra floor space, the appellants wish to remove the chimney stacks at a later stage of the construction. In my view it is divorced from reality to regard what would have been demolition in the original site clearance as converted to an "alteration" if carried out at a later stage.

   I would stress that there is no alteration to the new building that was not necessarily involved in the demolition of the chimney breasts, namely extending the floor to the façade to cover the voids left by demolition of the chimney breasts.

   Test the matter this way. The appellants acquired the building [on 2 November] 1989 before any demolition had commenced. They could before starting demolition have applied for the planning consent to be varied to enable them to demolish the chimney breasts. This we know would have been refused. The appellants would have been thereby deprived of additional floor space, but would not have been entitled to compensation.

   In fact they chose to demolish the building and then to apply to demolish the chimney breasts. And it is said that by making the application later rather than earlier they turn demolition into alteration and hey presto are entitled to £1,800,000. My Lords, that does not seem right to me. Taking down and destroying the chimney breasts was part and parcel of the demolition of the old listed building whether it took place before or during the construction of the new building and I would dismiss the appeal.

   The view I take does not depend on the construction of "listed building." But like Lord Cooke I am not persuaded that the statutory definition of "building" should be excluded from the phrase "listed building." I certainly would not wish to decide the point without hearing argument from English Heritage and other bodies likely to be affected by a fundamental change to the basis upon which the legislation has hitherto been administered.

LORD LLOYD OF BERWICK

My Lords,

   I have had the benefit of reading in draft the speech to be given by my noble and learned friend Lord Hope of Craighead. I agree with it and for the reasons which he gives I too would allow this appeal and restore the decision of the Lands Tribunal.

LORD COOKE OF THORNDON

My Lords,

   The appellant, having become the owner of the listed building then known as Qantas House, on the western corner of Piccadilly and Old Bond Street, wished to enlarge the floor space by removing old chimney breasts, extending the existing flooring and making it load bearing for the support of the chimney stacks. Listed building consent under the Planning (Listed Buildings and Conservation Areas) Act 1990 was sought, but refused because the chimney breasts were considered of special architectural or historical interest. The application had been made in June 1990 and subsequently amended.

   Section 27 of the Act of 1990 made the provision for compensation on which this appeal turns. The section was repealed in 1991 in relation to applications for listed building consent made on or after 16 November 1990, but remains in force for the purposes of the appellant's claim to compensation.

   Prima facie the appellant is entitled to compensation, as each of the three conditions in section 27(1) is satisfied. The application can naturally be seen as being in essence for the alteration of a listed building. This is the only point in contention. It is common ground that the works do not constitute development and that the Secretary of State has refused consent.

   The policy embodied in section 27 appears to have been in part that an applicant could not obtain compensation for mere refusal of consent to demolition. That is readily intelligible. It was for the refusal of consent to the constructional work of alteration or extension that compensation was to be available. Subject to the de minimis principle, it seems to me reasonably clear on the natural and ordinary reading of the section that an applicant refused permission under the Act to carry out such work of construction had a valid claim to compensation. A refusal would normally be for the reason that the project would involve the demolition or impairment of, or a threat to, features of special architectural or historic interest; but such reasons, while explaining the refusal, did not eliminate the former right of compensation. There was nothing in section 27 to cut down the meaning of "alteration or extension."

   On that short ground I would allow the appeal and restore the preliminary decision of the Lands Tribunal.

   My Lords, I must own to experiencing some difficulty in adopting in the route to that result an interpretation which involves treating the expression "listed building" in sections 7 and 8 and elsewhere as not including part of a listed building. I should have thought that, in combination, the relevant definitions in section 91(1) and (2) of the Planning (Listed Building and Conservation Areas) Act 1990 and section 336 of the Town and Country Planning Act 1990 have the prima facie meaning that "listed building" includes a part thereof; and it is at least doubtful whether the various reasons which can be put forward to the contrary are strong enough to enable one to say that the context requires the apparent combined effect of the definitions to be rejected.

   Merely arguable suggestions, or a limited degree of surplusage (possibly for clarity), seem grounds too slight to justify such a rejection, as does the fact that the discretionary powers in s.17(3) to impose a condition relating to works on "the site" could not be exercised if there were no site. On the other hand, if a proposed alteration or extension will involve demolition of a part of a listed building it is understandable, albeit sometimes no doubt inconvenient, that notice of the proposal should be required to be given to the Royal Commission under s.8(2). Moreover, the Government Departments concerned in the administration of the Act, the Member of the Lands Tribunal, the Court of Appeal and a High Court Judge, and also perhaps learned counsel who appeared before your Lordships, had all understood the definitions to apply and so had regarded "listed building" as including part thereof.

   In these circumstances it does not seem to me easy to say that the context speaks with such clarity as to require a different meaning. In general those who draft legislation and those who are affected by it are entitled to assume that the courts will apply apparently relevant definitions unless they are clearly excluded. But, on the view which I have taken, a definite opinion on the point as to demolition of part of a listed building need not be expressed.

   For the reason that the claim to compensation fell within s.27, I too would allow this appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

   The question at issue in this case is whether the appellants' application for listed building consent for the removal of certain structures within a listed building was an application for the alteration or extension of that building within the meaning of section 27(1)(a) of the Planning (Listed Buildings and Conservation Areas) Act 1990. If it was, the appellants are entitled under section 27(2) to compensation from the respondents, who are the local planning authority, as listed building consent for the removal of these structures was refused. Section 27 of the 1990 Act was repealed by section 84(6) of and schedule 19 to the Planning and Compensation Act 1991, so compensation under that section for the refusal of listed building consent is no longer available. But it will be necessary in order to decide this appeal to deal with some questions of more general interest about the structure of the legislation relating to the control of listed buildings.

THE FACTS

   The appellants are the owners of a site on the corner of Old Bond Street and Piccadilly in London. The site extends from 56-60 Piccadilly to 45-50 Old Bond Street. The building at 56-60 Piccadilly and 48-50 Old Bond Street, which was known originally as "The Corner" and more recently as Qantas House, is a listed building. The remainder of the site at 45, 46 and 47 Old Bond Street is not listed. The building which is listed comprises a corner block of offices and shops. It is regarded as a fine example of the Edwardian Baroque with Dutch influences. It was erected in 1905, to a design by Herbert Read and Robert Faulkner Macdonald, for Callard Stewart & Watt who operated tea rooms popular with visitors to the Royal Academy. From the 1960's it was occupied by Qantas Airways, who carried out various works of modernisation and alteration to the interior and significant works of alteration to the ground floor frontages.

   On 6 July 1988 Prudential Assurance, who then owned the site, were granted listed building consent and planning permission for the demolition of everything except the façades facing Piccadilly and Old Bond Street and the chimney breasts and chimney stacks of the listed building, and for the redevelopment of the whole site to provide shops, a wine bar and restaurant and offices. On 2 November 1989 the appellants became the freehold owners of the site. Demolition began in March 1990. By June 1990 the building consisted only of the façades, chimney breasts and chimney stacks supported by temporary steelwork.

   On 22 June 1990 the appellants applied to the respondents for listed building consent for the removal of the chimney breasts at first, second, third and fourth floor levels behind the Old Bond Street façade. On 2 July 1990 the application was amended to include the chimney breasts at fifth floor level. On 3 August 1990 a further amendment was made to the application to include temporary and permanent support to the chimney stacks. The respondents failed to determine the application within the statutory eight week period. The appellants then appealed against the deemed refusal to the Secretary of State of the Environment. On 4 June 1991, after considering representations made by the appellants, by the respondents and by English Heritage, the Secretary of State's Inspector dismissed the appeal. By that date the approved scheme of redevelopment was at an advanced stage. Although the new fabric was incomplete internally, the roof and all the floors were in place and the temporary steelwork within the building had all been removed.

   A dispute then arose between the appellants and the respondents as to whether the appellants were entitled to compensation for the refusal of listed building consent for the removal of the internal chimney breasts. The appellants referred their claim to the Lands Tribunal. On 8 July 1992 it was ordered that the following preliminary issues be determined at a preliminary hearing on a date to be fixed:

   "(a) Whether the works which were the subject matter of the application for listed building consent which was refused by the Secretary of State for the Environment in his decision letter dated 4 June 1991 constitute alterations to or extensions of a listed building under section 27(1)(a) of the Planning (Listed Buildings and Conservation Areas) Act 1990, with the result that compensation is accordingly payable by the Compensating Authority to the Claimant;

   (b) If compensation is payable, the date at which the amount of compensation is to be assessed."

On 21 May 1993 the Lands Tribunal determined the first preliminary issue in the appellants' favour. In respect of the second preliminary issue it was agreed that the relevant date for the assessment of the amount of compensation was 4 June 1991.

   The issue which the member was asked to decide was one of fact, namely whether the removal of the chimney breasts constituted the demolition or the alteration of a listed building within the meaning of the Act. It was accepted that, if their removal was an alteration of the listed building, compensation under section 27 would be payable. This was because subsection (1)(a) of that section provided that the section was to have effect where "an application is made for listed building consent for the alteration or extension of a listed building." It was also accepted that if their removal amounted to the demolition of a listed building or part of a listed building, compensation under that section would not be payable. After reviewing the facts which had been established by the evidence, the member (T Hoyes Esq., FRICS) reached the conclusion that the works constituted an alteration to a listed building rather than the demolition of a part of a listed building. The respondents then appealed by way of case stated to the Court of Appeal.

   On 20 December 1994 the Court of Appeal (Millett L.J. and Sir Ralph Gibson, Russell L.J. dissenting) allowed the appeal and set aside the decision of the Lands Tribunal. In his dissenting judgment Russell L.J. said that the question whether a particular activity was "demolition" or "alteration" of a building was essentially a question of fact to be determined in the light of all the relevant circumstances, that the court should not interfere in the finding of the Lands Tribunal if the member was entitled on the material before him to reach he conclusion that he did and that, as he was entitled to reach that conclusion, his decision should not be disturbed. The majority reached the opposite conclusion after a careful review of the relevant provisions of the Act. They held that, when section 27(1)(a) referred to "an application for . . . consent for the alteration . . . of a listed building", the words in their context did not include an application for consent for works which consisted of or included demolition of part of a building. In their view the concepts of "demolition" and "alteration" were mutually exclusive, to the extent of precluding the demolition of a part of the building from amounting to an alteration of the whole. Millett L.J. made it clear that he reached this decision with reluctance and regret, but he said that he was persuaded that the opposite view could not be maintained in view of the provisions of section 8 of the Act, as they dealt separately with the authorisation of works of alteration or extension on the one hand and works of demolition on the other.

   It should be noted that the discussion in the Court of Appeal was conducted throughout on the assumption that the statutory definition of the word "building" in section 336(1) of the Town and Country Planning Act 1990, which is extended to the Planning (Listed Buildings and Conservation Areas) Act 1990 by section 91(2) of that Act--namely that the expression "building", except insofar as the context otherwise requires, includes "any part of a building"--applies to the word "building" where it appears in the phrase "listed building" as used in the relevant sections of the Listed Buildings and Conservation Areas Act. It was assumed not only that the expression "listed building" includes any part of a listed building whenever that expression is used in the Act, but also that the system of control which the Act provides can be applied to any part of the listed building in the same way as it applies to the whole.

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.

 

   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."

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."

   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."

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.

   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."

   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"

   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).

   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.

   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."

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.

   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.

   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.

   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).

   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.

   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)."

   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.

   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."

  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] AC 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

    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.

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