Debenhams Plc v Westminster City Council
| Jurisdiction | England & Wales |
| Judge | Lord Keith of Kinkel,Lord Templeman,Lord Griffiths,Lord Mackay of Clashfern,Lord Ackner |
| Judgment Date | 04 December 1986 |
| Judgment citation (vLex) | [1986] UKHL J1204-1 |
| Date | 04 December 1986 |
| Court | House of Lords |
[1986] UKHL J1204-1
House of Lords
Lord Keith of Kinkel
Lord Templeman
Lord Griffiths
Lord Mackay of Clashfern
Lord Ackner
My Lords,
This appeal raises difficult questions as to the proper construction of certain of the unoccupied rates provisions of the General Rate Act 1967 (as amended) in their application to buildings listed by the Secretary of State, under section 54 of the Town and Country Planning Act 1971, as being of Special architectural of historic interest. The proper construction or certain provisions of section 54 is also in issue.
The appellants are the rating authority for the City of Westminster, and the respondents were at the material time owners of a hereditament described in the valuation list which came into force on 1 April 1973 as "200/202 Regent Street (and 50/52 Kingly Street)." This hereditament was formerly Hamley's toy shop. It comprised premises fronting onto Regent Street and running back to the west side of Kingly Street at the rear, and also (notwithstanding the description in the list) further premises on the east side of Kingly Street and known as 27/28 Kingly Street. The back part of the former premises (50/52 Kingly Street) was formerly connected to the latter premises by a footbridge passing over Kingly Street at second floor level and by a tunnel passing underneath it. The tunnel was filled in by operations which concluded in January 1983 and the footbridge was removed in March 1983. These works were done to enable 27/28 Kingly Street to be sold separately. No physical demarcation existed between 200/202 Regent Street and 50/52 Kingly Street.
In 1973 the Secretary of State for the Environment compiled, under section 54 of the Act of 1971, a list of buildings of special architectural or historic interest which included a number of properties in Regent Street. Under the heading "Regent Street, Wl (East Side)" there appeared inter alia "Nos 172 to 206 (even)."
The respondents occupied the hereditament and carried on Hamley's toy shop there until 31 October 1981, when they vacated it, and it remained unoccupied when, on 22 July 1982, the appellants made a complaint against the respondents for non-payment of rates amounting to £68,696.91 upon the hereditament in respect of the period from 1 February 1982 to 31 March 1983. At the same time they issued a summons applying for a distress warrant, which was heard by Mr. Campbell, a Metropolitan Stipendiary Magistrate, on 29 March 1983. The respondents claimed exemption from unoccupied rates under Schedule 1 paragraph 2( c) to the Act of 1967 as amended, but the magistrate rejected the claim and issued a distress warrant, holding that the exemption for listed buildings there provided for was not available when, as he found to be the case, part only of the hereditament was listed. He found that 200/202 Regent Street and 50/52 Kingly Street were listed but that 27/28 Kingly Street was not. At the request of the respondents the magistrate stated a case for the opinion of the High Court, in which he made findings of fact upon which the foregoing account is based and posed the following questions of law:
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"(i) Did I err in law in holding that only part of the hereditament was listed?
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(ii) Did I err in law in holding that the listed part was 200/202 Regent Street and 50/52 Kingly Street?"
The respondents' appeal by stated case was heard by Hodgson J., who allowed it and answered the questions of law in the affirmative. On appeal by the rating authority the Court of Appeal (Fox, Neill and Ralph Gibson L.JJ.) affirmed that decision. The authority now appeals to your Lordships' House.
Section 17 of the Act of 1967 provides that a rating authority may resolve that the provisions of Schedule 1 to the Act shall apply to their area, and the appellants have done so. Paragraph 1(1) of Schedule 1 provides that in these circumstances where any relevant hereditament in the area is unoccupied for a continuous period exceeding three months "the owner shall, subject to the provisions of this Schedule, be rated in respect of that hereditament for any relevant period of vacancy; and the provisions of this Act shall apply accordingly as if the hereditament were occupied during that relevant period of vacancy by the owner."
By paragraph 15:
"'relevant hereditament' means any hereditament consisting of, or of part of, a house, shop, office, factory, mill or other building whatsoever, together with any garden, yard, court or other land ordinarily used or intended for use for the purposes of the building or part;"
Paragraph 2, as amended by section 291 of, and Schedule 23 to the Town and Country Planning Act 1971, provides:
"2. No rates shall be payable under paragraph 1 of this Schedule in respect of a hereditament for, or for any part of the three months beginning with the day following the end of, any period during which-
( a) the owner is prohibited by law from occupying the hereditament or allowing it to be occupied;
( b) the hereditament is kept vacant by reason of action taken by or on behalf of the Crown or any local or public authority with a view to prohibiting the occupation of the hereditament or to acquiring it;
( c) the hereditament is the subject of a building preservation notice as defined by section 58 of the Town and Country Planning Act, 1971 or is included in a list compiled or approved under section 54 of that Act, or is notified to the rating authority by the Minister as a building of architectural or historic interest;
( d) the hereditament is the subject of a preservation order or an interim preservation notice under the Ancient Monuments Acts 1913 to 1953, or is included in a list published by the Minister of Public Building and Works under those Acts;
( e) an agreement is in force with respect to the hereditament under section 56(1)( a) of this Act; or
( f) the hereditament is held for the purpose of being available for occupation by a minister of religion as a residence from which to perform the duties of his office."
It is in subparagraph ( c) of that paragraph which is directly in point here. If it be a correct conclusion that the whole of the hereditament is to be regarded as included in the list compiled by the Secretary of State in 1973, notwithstanding that only part of it is specifically mentioned in that list, then exemption from unoccupied rates will be available. Counsel for the respondents argued that, on a proper construction and application of the relevant provisions of the Act of 1971 as regards listing, this was indeed the position.
Section 54(1), (2), and (9) of that is in these terms:
"(1) For the purposes of this Act and with a view to the guidance of local planning authorities in the performance of their functions under this Act in relation to buildings of special architectural or historic interest, the Secretary of State shall compile lists of such buildings, or approve, with or without modifications, such lists compiled by other persons or bodies of persons, and may amend any list so compiled or approved.
(2) In considering whether to include a building in a list compiled or approved under this section, the Secretary of State may take into account not only the building itself but also-
( a) any respect in which its exterior contributes to the architectural or historic interest of any group of buildings of which it forms part; and
( b) the desirability of preserving, on the ground of its architectural or historic interest, any feature of the building consisting of a man-made object or structure fixed to the building or forming part of the land and comprised within the curtilage of the building.
(9) 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 the provisions of this Act relating to listed buildings and building preservation notices, any object or structure fixed to a building, or forming part of the land and comprised within the curtilage of a building, shall be treated as part of the building."
The argument for the respondents, which was accepted by Hodgson J. and the Court of Appeal, was that the building 27/28 Kingly Street, not mentioned in the list compiled by the Secretary of State, was, within the meaning of section 54(9) a "structure" which by the footbridge and the tunnel was fixed to the building 200/202 Regent Street and 50/52 Kingly Street, which was mentioned in that list, or alternatively formed part of the land and was within the curtilage of the latter building. Accordingly it fell to be treated as part of that listed building. The argument was supported by reliance on Attorney-General ex rel. Sutcliffe v. Calderdale Borough Council. (1983) 46 P.&C.R. 399. That case concerned a disused mill and a terrace of cottages with a bridge linking the two, the cottages having been formerly owned by the millowners and occupied by their workers, though they had later come to be in separate ownership. The mill was listed but the cottages were not. The Court of Appeal held that, within the meaning of section 54(9), the terrace of cottages was a structure fixed to the mill, and further was one which formed part of the land and was comprised within the curtilage of the mill. The cottages could not, therefore, be demolished without the consent of the Secretary of State.
In my opinion, the success or failure of the argument must turn on the meaning to be attributed to the word "structure" in section 54(9). In its ordinary significance the word certainly embraces anything built or constructed and so would cover any building. The question is whether its context here requires a narrower meaning to be attributed to it. The wider meaning could lead to some...
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