M'LearnedFriend Charles Mynors FRTPI ARICS Barrister examines a recent decision of the House of Lords relating to demolition. Shimizu is not a new form of oriental martial arts; it is in fact an important case that recently decided by the House of Lords. It concerns a statutory provision that was repealed over five years ago; but its ramifications may be considerable - particularly in relation to the control of minor works in conservation areas. The case started in the Lands Tribunal; and alert readers of this august Journal will recall the article in this series in Context 48, which considered the overturning of the Tribunal's decision by the Court of Appeal. That decision has itself in turn now been overturned by the House of Lords, in a twist which seems to have caught by surprise almost everyone - not least Her Majesty's Government. The decision Once a building has been listed by the Secretary of State as a building of special architectural or historic interest, listed building consent is needed for: "the demolition of a listed building; and "the alteration or extension of a listed building in any way that affects its character as a building of special interest". The difference between these two categories is usually of little consequence - consent is, after all, needed either way. However, section 27 of the Planning (Listed Buildings and Conservation Areas) Act 1990 provided that compensation was available if listed building consent was refused, but only where the proposed works were for the "alteration or extension" of a listed building, as opposed to works for the "demolition" of a listed building. Section 27 was repealed by the Planning and Compensation Act 1991, but not so as to effect claims that had been made in relation to applications for consent prior to 16 November 1990. The instant case concerned an application for listed building consent for the removal of an internal chimney breast from an office block in Piccadilly that had been listed. The owner of the building (Shimizu (UK) Ltd) had been refused consent, and as a result sought compensation (which it estimated at £1.8 million) under section 27. The local planning authority 38 (Westminster) declined to pay up, on the grounds that the works constituted the demolition of part of the building, and thus that refusal did not justify a claim for compensation. The member of the Lands Tribunal, before whom the matter was initially argued, came to the view that the works were for the "alteration" of the building. The Court of Appeal (by a majority) overturned that decision, and the matter proceeded on to the House of Lords, where speeches were delivered on 6 February 1997 (reported as Shimizu (UK) Limited v Westminster City Council (1997) 1 WLR 168; it has also been reported in The Times, although not very well, and will doubtlessly soon be in the Journal of Planning Law and elsewhere). The leading speech was delivered by Lord Hope, with whom Lord Browne Wilkinson and Lord Lloyd of Berwick agreed. Lord Cooke agreed with Lord Hope's conclusion, but reached it by a quite different (and, at least to the present writer, not wholly understandable) route. Lord Griffiths dissented. Lord Hope founded his decision on an analysis of the meaning of the words "listed building". It had hitherto been widely supposed that, since "building" was defined in the Planning Acts to include "part of a building", the phrase "listed building" would by analogy include the phrase "part of a listed building". The removal or destruction of part of a listed building would thus constitute "demolition" of that part, and would come within the scope of the statuto1y provisions (including s 27 of the Act) relating to the demolition of listed buildings. However, after an exhaustive analysis of all the references in the Act to the phrase "listed building", Lord Hope came to a different conclusion: "My Lords, I have not found any provision in Part I of the Act where it is not possible to make peifect sense of the expression 'listed building' in its con text without reading the word 'building' as including any part of a 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 " (p 182H). In other words, a "listed building" means the whole of the building that is listed, and the "demolition of a listed building" means the removal or destruction of the whole of that building; the removal or destruction of part is only "alteration" of the whole. The noble Lord further held that the definition of what constitutes "demolition", as opposed to "alteration", is still ultimately a question of fact, for the tribunal of fact, and that no more precise definition of the expression was required. He thus came to the conclusion that there was nothing in this case to justify overturning the original decision of the Lands Tribunal, that the removal of the chimney breast amounted to works for the"alteration" of the listed building, not works for its "demolition". Compensation was thus to be awarded. Conservation areas As already noted, the prov1s1on directly under review, s 27 of the 1990 Act, has been repealed; the decision is thus on the face of it of academic interest only. However, there are a number of other provisions, still very much in force, where the distinction between "demolition" and "alteration" is of importance. Foremost amongst these is s 74 of the Act, which provides that the provisions of the Act relating to works to listed buildings are to apply equally to unlisted buildings in conservation areas - except that "conservation area consent" (the equivalent of "listed building consent") is required only for "demolition", and not for "alteration or extension". It was obvious that this provision might be affected by the decision in the Shimizu litigation. In the course of his analysis, therefore, Lord Hope considered how the listed buildings provisions in the Act are applied so as to relate to conservation areas, in order to ensure that his conclusion did not lead to an absurdity. He dealt with the point thus (at p 183B): "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. Subsection (1) of section 74proContext54 June1997
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