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

The House of Lords allowed the appellants' appeal and restored the decision of the Lands Tribunal that the removal of internal chimney breasts was an "alteration" rather than the "demolition" of a listed building for the purposes of section 27 of the Planning (Listed Buildings and Conservation Areas) Act 1990. The court held that the phrase "listed building" should be read as referring to whatever building or part of a building is entered in the statutory list, and that the extended statutory definition of "building" in section 336 of the Town and Country Planning Act 1990 does not require that every use of the phrase "listed building" be read as permitting the controls in Part I to be applied to each physical part in isolation.

Accordingly, "demolition" in this statutory context means destruction of the listed building (or works so extensive as to clear the site for redevelopment), whereas works removing parts of the listed structure may properly be characterised, depending on their effect on the listed entity as a whole, as "alteration". On the facts the Lands Tribunal was entitled to find alteration, so compensation under section 27 was available.

Background and parties: The appellants (Shimizu) owned a site including a listed building known as Qantas House. After partial demolition retained only the façades and chimney breasts/stacks. The appellants applied for listed building consent to remove internal chimney breasts to create additional floor space; the Secretary of State refused on appeal. The appellants claimed compensation under section 27 of the Planning (Listed Buildings and Conservation Areas) Act 1990 and referred the claim to the Lands Tribunal.

Procedural history:

• The Lands Tribunal determined (21 May 1993) the works were an alteration and awarded the preliminary point to the appellants.
• The Court of Appeal (20 December 1994) allowed the respondents' appeal and set aside the Lands Tribunal decision (majority; Russell L.J. dissenting).
• The House of Lords heard the appeal and restored the Lands Tribunal decision.

Nature of the claim/application: The appellants sought compensation under section 27 (statutory compensation for refusal of listed building consent for alteration or extension) for loss caused by refusal of consent to remove chimney breasts.

Issues framed by the court:

• Whether the application for removal of the chimney breasts constituted an application for the "alteration or extension of a listed building" within section 27(1)(a), or instead amounted to the "demolition" of a listed building (or part) so as to exclude compensation.
• Whether the statutory definition of "building" (including "any part of a building") requires that the controls and terminology in the Listed Buildings Act be applied to parts of a listed building in isolation.

Reasoning: The majority undertook statutory construction of the Listed Buildings Act read with the definition of "building" in the Principal Act (section 336 of the Town and Country Planning Act 1990) and the definition of "listed building" in section 1(5) of the Listed Buildings Act. The court concluded that while the Secretary of State may list a whole building or part of it, the subsequent use of the phrase "listed building" in Part I of the Act should be read as referring to the entry in the list (the listed entity) rather than as automatically treating every physical part as a separately controlled "listed building." That reading avoided anomalous results in relation to provisions such as section 8 (which adds procedural safeguards for demolition) and section 17(3) (which contemplates site redevelopment following demolition). The ordinary meaning of "demolition" was held to be destruction of the listed building as a whole or works so extensive as to clear a site for redevelopment; partial removals could properly be characterised as alterations to the listed entity as a whole. On the facts, the Lands Tribunal's factual finding that the works were alterations was open to it and should be restored.

Subsidiary observations: The Lords rejected reliance on a strict reading that every partial removal is "demolition" simply because of the extended meaning of "building" in the Principal Act; they also rejected reliance on Furniss v. Dawson as inapplicable. The decision affected guidance in departmental circulars and planning policy guidance which had treated demolition of a part as falling within demolition controls.

Appeal allowed. The House of Lords restored the Lands Tribunal's finding that the removal of the chimney breasts was an "alteration" of the listed building for the purposes of section 27 of the Planning (Listed Buildings and Conservation Areas) Act 1990, entitling the appellants to compensation; the court reasoned that "listed building" should be read as the building or part entered in the list and that "demolition" denotes destruction of the listed building as a whole or works so extensive as to clear the site for redevelopment.

Lands Tribunal: preliminary issues decided for the appellants (21 May 1993). Court of Appeal: allowed respondents' appeal and set aside Lands Tribunal (20 December 1994) (majority; Russell L.J. dissenting). House of Lords: allowed appellants' appeal and restored the Lands Tribunal ([1997] UKHL 3).