Charles Mynors FRTPI ARICS Barrister examines some recent decisions in the courts relating to listed buildings M'LEARNEDFRIEND 1. DEMOLITION REVISITED* (M' Learned FFiend- Context 35 page 11) CONCLUSIONS· There are no water-eight tests co determine whether or not the removal of pare of a building constitutes 'demolition'. As a resulc of the above analysis, however, the following propositions may be offered tentatively: (a) Where an operation is on a very small scale (eg the removal of a door handle), it is unlikely to be demolition; (b) Where a two-stage operation involves as the first stage the removal of all or part of a building, and where it would not be reasonably possible to hale half-way without going any further, chat first stage (eg the removal of a window or shopfront) 1s unlikely co amount co demolition; (c) Where the removal of part of a building is on a sufficiencly large scale (eg the demolition of a substantial pare of one) chat is clearly amounts co the first of two separate operations, it is probably demolition; (d; Where an operation is such that some word other than 'demolition' (eg 'removal', 'replacemen c', 'repa1r , 'alteration') is more ape co describe it, it is probably not demolition; (e) Where the removal of part of a building is clearly incidental to the carrying out of an extension, ic is unlikely to be demolition; and (ff Where rhe intention of che person carrying out an operation is solely negative, the operation is likely to be demolition; and (g) Whether an operation does or does not amount to demolition is a matter of fact and degree, co be decided by the decision-maker. Perhaps the test of Comyn J in North Hertfordshire was not so unhelpful after all - an operation may include some demolition, but does it "necessarily amount co demolition"? JOHN BOLD REPLIES FOR THE ROYAL COMMISSION In his very useful article ( Context, 35, September 1992), Charles Mynors reviews the vexed question of 'what is demolition'. The importance of this discussion to the Royal Commission on the Historical Monuments of England is acknowledged by his lengthy consideration of the Legal Reference Sheet and Guidelines which we have issued in order co offer some help co both applicants and local authorities who do not find the Commission's role and the law relating co listed building consent as clear as they might wish. Currencly DoE Circular 8/87 is used as a basis for further clarification of the issue of demolition/ alteration but this will be superseded soon by a departmental Planning Policy Guidance Note on conservation policy. We are not sanguine about its impact on this discussion since, unlike Mr Justice Comyn in che celebrated 1981 North Herefordshire case, cited by Mr Mynors, we do nor believe chat a clear distinction between alteration and demolition is readily capable of being drawn. Mr Mynors suggests chat the use of different words -'altered', 'replaced', 'removed', 'demolished' - may offer a way forward in expressing precisely what an application might mean. Experience of the planning laws in practice suggests chat this is an unwarrantedly optimistic, indeed pious, hope. Applicants and their agents are often highly skilled in the production of vague wordings and whilst the local planning authority is endeavouring to determine what the application means in * My not so learned friend, the Editor omitted the conclusions to Charles Mynors last article far which he apologisesto the author and readers. CONTEXT 36 effect, at the same time its hard pressed staff have to decide to whom the application should be sent for consultation. Hence our two sheets of A4, printed on differently coloured paper in order to make clear the fact chat they are nor one leaflet as Mr Mynors suggests, but cwo documents, which seek to assist and to clarify. Our Legal Reference Sheet states the main points both of the relevant Acts and of the DoE Circular, as they apply to RCHME, in order co make clearer our role and responsibilities and the responsibilities of applicants and local authorities to us. Ic is unreasonable to expect all Planning Department staff always co have co consider, without guidelines, which listed building consent applications might apply to RCHME and which do not. In view of the difficulty of drawing a line between alteration and demolition, we advise chem to inform us of alterations co interiors and exteriors which involve the removal of features and to inform us also of schemes of repair and restoration. Thus armed, we are then in a position co enquire further about the extent of proposed works, and the historical and architectural significance of the fabric before deciding whether or not the making of a record is appropriate. So far as we are aware, our reading of the legislation does not differ from chat of any of the amenity societies who are informed also of proposed works to listed buildings. Our Guidelines on cases of interest to RCHME do nor attempt to define either demolition or the detail of the Commission's role in the legislation. They represent an attempt co assist local authority Conservation Officers who wish to plot an honourable and helpful course through the choppy waters of the legislation. As the leafier states, "these are not hard and fast rules". How could they be, given che uncertainty of the law? Of course the first example of an application which concerns us, chat for 'total and partial demolition' begs the question of what is partial demolition. How could it not? Nowhere is it defined. With respect to the 'confused' points 4 and 5, perhaps Mr Mynors is himself confused in supposing that here we are attempting to define demolition. We are not. As a recording, rather than commencing, body, whose work has consistently proved valuable to all chose concerned with the future of historic buildings, including Conservation Officers, we are at pains to point out the type of works which may remove or reveal evidence which may help us to elucidate the history of a building and thus indicate its significance to chose who determine its future. Extensive stripping of wall coverings (point 4) may or may not be demolition but may well reveal the original or subsequent structure, hitherto concealed. 'Applications of uncertain extent .. .' (point 5) reminds planning officers of the desirability of informing us of cases in which the word 'demolition' is conspicuously avoided by the applicant. 'General refurbishment and improvement' could well involve almost total demolition behind the facade. Mr Mynors is absolutely correct to point out that 'if what is proposed is of uncertain extent, the remedy is to seek further 27
RkJQdWJsaXNoZXIy MjgyMjA=