Shimizu (UK) Ltd v Westminster City Council

For listed-building control, a “listed building” is the building or part of a building entered in the statutory list, considered as a single listed entity. Demolition ordinarily means destroying that entity as a whole, or so substantially as to clear the site for redevelopment. Work which removes only part of the listed entity, while falling short of its destruction, may constitute alteration.

The classification is one of fact and degree. Where refused works constitute alteration or extension and satisfy the other conditions in section 27(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, the former statutory right to compensation applies.

The appellant owned a listed building undergoing substantial redevelopment. Earlier consent had permitted the removal of most of the building while retaining its façades, chimney breasts and chimney stacks. The appellant subsequently sought consent to remove internal chimney breasts and undertake associated structural work. The Secretary of State’s Inspector dismissed its appeal from the deemed refusal.

The Lands Tribunal held that the proposed works constituted alteration rather than demolition, so that compensation was payable under section 27 of the Planning (Listed Buildings and Conservation Areas) Act 1990. The Court of Appeal, by a majority, reversed that decision. It treated demolition and alteration as mutually exclusive when the works demolished part of a listed building.

The central issue before the House was whether removing the chimney breasts was alteration or extension of the listed building within section 27(1)(a), thereby attracting compensation following refusal of consent.

1. Appeal allowed by a majority of four to one. Lord Hope of Craighead delivered the leading speech. Lord Browne-Wilkinson and Lord Lloyd of Berwick agreed with his reasons. Lord Cooke of Thorndon concurred in the result on a shorter construction of section 27. The decision of the Lands Tribunal was restored.

2. Per Lord Hope, the expression “listed building” in Part I of the Planning (Listed Buildings and Conservation Areas) Act 1990 means the building, or part of a building, which is entered in the statutory list. Once entered, that structure is the listed building. The extended definition of “building” in section 336(1) of the Town and Country Planning Act 1990 does not require every constituent part of the listed structure to be treated independently as a listed building.

3. Per Lord Hope, demolition ordinarily means pulling down and destroying the listed building as a whole. It is not confined to removing every physical component. Works may amount to demolition where they are so extensive that, for practical purposes, the listed building is destroyed and the site cleared for redevelopment. The classification is ultimately one of fact and degree for the Lands Tribunal.

4. Works which pull down part of the listed building, but fall short of destroying the listed entity, may constitute alteration. Section 8 supports that construction: its additional procedure for demolition concerns recording the listed building before its destruction. It does not convert every removal of part into demolition. The proposed removal of the chimney breasts was therefore capable of being found to be alteration.

5. Because the works were alterations within section 27(1)(a), and the remaining statutory conditions were satisfied, the former compensation provision applied. Lord Cooke reached the same conclusion because the application naturally concerned constructional alteration and section 27 contained nothing cutting down the ordinary meaning of alteration or extension. He reserved his position on whether “listed building” could include its constituent parts.

6. Per Lord Hope, an applicant may seek planning or listed-building consent at the times and in the sequence it chooses. The anti-avoidance reasoning in Furniss v Dawson did not apply because there was no pre-ordained series of transactions or deliberate fragmentation designed to maximise compensation.

7. Lord Griffiths dissented. He regarded demolition and alteration as overlapping factual concepts and considered that removing the chimney breasts remained demolition irrespective of when the work was proposed. He would have dismissed the appeal.

1. House of Lords: Allowed the owner’s appeal by a majority of four to one and restored the Lands Tribunal’s preliminary decision.

2. Court of Appeal: By a majority, allowed the local authority’s appeal and set aside the Lands Tribunal’s decision. Russell LJ dissented.

3. Lands Tribunal: Determined that the proposed removal of the chimney breasts constituted alteration of a listed building, so compensation was payable under section 27 of the Planning (Listed Buildings and Conservation Areas) Act 1990.

4. Secretary of State: The Inspector dismissed the owner’s appeal from the deemed refusal of listed-building consent.