Shimizu (U.K.) Ltd v Westminster City Council

JurisdictionEngland & Wales
Judgment Date06 February 1997
Judgment citation (vLex)[1997] UKHL J0206-3
Date06 February 1997
CourtHouse of Lords

[1997] UKHL J0206-3


Lord Browne-Wilkinson

Lord Griffiths

Lord Lloyd of Berwick

Lord Cooke of Thorndon

Lord Hope of Craighead

Shimizu (U.K.) Limited
Westminster City Council

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.


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.


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.


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...

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