Business rates and heritage assets

Village green iStock 000009004124XSmall 146x219When is a building a listed building? Peter Dixon and Simon Whitfield report on a recent Administrative Court case over whether the whole of a building or just part of it was listed.

Section 1 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (‘the 1990 Act’) (and Section 54 of the Town and Country Planning Act 1971 which preceded it) imposes a duty upon the Secretary of State to compile a list of buildings of special architectural or historic interest. By virtue of Section 1(5) of the 1990 Act a building listed in this way is, together with (i) any object or structure fixed to the building and (ii) any object or structure within the curtilage of the building that is not fixed to it but which has formed part of the land since 1 July 1948, a ‘listed building’.

When compiling the list or adding to it ‘building’ is to be given the extended meaning provided by Section 336(1) of the Town and Country Planning Act 1990 (‘the principal act’) i.e. including “any part of a building”. The Secretary of State may thereby ‘list’ any building or any part of a building: having done so it is that building or part of a building that is the ‘listed building’ subject to the provisions of Section 1(5) of the 1990 Act (Shizumu (UK) Ltd v Westminster City Council [1997] 1 All ER 481 at 493).

The statute does not prescribe the form of the list or the information that it should contain. It needs do no more than identify the listed building and the statutory scheme assumes that the question of whether or not a building is a listed building can be determined simply by inspecting the list and that the name of the building will be sufficient to identify what is in the list (City of Edinburgh Council v Secretary of State for Scotland [1997] 3 PLR 71 at 75 & 76).

What then if there is doubt about whether or to what extent a building is a listed building because of ambiguity in how the building is dealt with in the list? That question is not only relevant in the context of planning and conservation but also in the context of local government finance. Under Section 45 of the Local Government Finance Act 1988 a hereditament is subject to non-domestic rates when empty if it falls within a class prescribed by the Secretary of State by regulations. The current regulations in England are the Non-Domestic Rating (Unoccupied Property)(England) Regulations 2008. By virtue of Regulation 3 all relevant non-domestic hereditaments are so liable subject to Regulation 4 which creates exemptions. Under Regulation 4(e) the exemptions include a hereditament which is included in a list compiled under Section 1 of the 1990 Act, i.e. which is a listed building.

Burnley Borough Council v Huron Properties Ltd [2017] RVR 279/[2016] EWHC 3803 (Admin) concerned a hereditament which at some time in the past had consisted of at least two and possibly more separate but adjoining buildings which had been constructed at different times but which had been in single occupation for many years and ‘knocked through’ internally during the 1960s to form a single space with a single principal entrance. The property, which occupied a corner site with frontages to two streets was comprised in a single registered title under an address which referred only to one of the frontages. The property was included in the rating list under a similar (but not identical) address, i.e. by reference to only one of the frontages. A building was included in the statutory list of buildings of architectural or historic merit under a different address by reference to both street frontages, at least in part. At the relevant times the whole of the building was unoccupied.

The ratepayer’s case was that the whole of the building comprised in the hereditament was a listed building and so exempt from the payment of rates when unoccupied by virtue of the 2008 Regulations. The local authority’s case was that only part of the building was listed because the address in the statutory list was only a partial address and to be interpreted as excluding the remaining part from the listing. The exemption in Regulation 4(e) of the 2008 Regulations is not available where only part of a hereditament is a listed building.

The case was determined in favour of the ratepayer at first instance. The local authority appealed against that decision by way of case stated and the appeal was heard by Kerr J sitting in the Administrative Court.

The Court accepted that where the name alone lead to ambiguity over what is included in the statutory list then following City of Edinburgh a court is entitled to look beyond the name of the building as given in the listing entry to look at the descriptive elements in the listing. The Court placed reliance upon what was said by Mummery LJ in Barratt v Ashford Borough Council [2011] P & CR 21 concerning the judgments in the City of Edinburgh case where he said:

In my judgment, the City of Edinburgh case decided that an entry in the list should be clear and precise, but that it is not sensible to be too strict in interpreting the list, such as by insisting on literal accuracy of details of dates or description. What matters is whether, on a sensible contextual reading of the whole entry, it is clear and precise enough to identify the listed building.

In my judgment, sensible allowances can and should be made, consistently with the terms of the legislation and with established canons of construction, for the fact that in the real world more than one name may be commonly used to describe a building, road or a place. Road names in rural areas sometimes change without precise or clear indications to the person trying to find the way along them. Names of buildings and places can undergo change over time…” (Barratt at paragraphs 39 and 40).

The Court found that in the instant case, although there were certain difficulties in the way in which the learned District Judge at first instance had expressed his reasoning, it was not persuaded that the District Judge had misunderstood the law and was satisfied that he had applied the approach endorsed in Barratt and City of Edinburgh finding that the case was one in which it was necessary to give consideration to the surrounding context in order to ascertain the meaning of the listing and that on the facts it was reasonable to conclude that the listed building was the whole of the hereditament.

Peter Dixon and Simon Whitfield of Exchange Chambers appeared on behalf of the ratepayer in the Administrative Court.