Burnley Borough Council, R (On the Application Of) v Huron Properties Ltd [2016] EWHC 3803 (Admin)

[2016] EWHC 3803 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Manchester Civil Justice Centre
1 Bridge Street West
Venue ManchesterDate Thursday, 10th November 2016
M60 9DJ
B e f o r e:
MR JUSTICE KERR
Between
THE QUEEN ON THE APPLICATION OF BURNLEY BOROUGH COUNCILAppellantv
Between
HURON PROPERTIES LTDRespondent
Digital Audio Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Ms Stockley appeared for AppellantMr Dixon & Mr Whitfield appeared for Respondent

JUDGMENT APPROVED

[1]MR JUSTICE KERR: This is an appeal by case stated from the decision of District Judge James Clarke, sitting at Burnley and Rossendale Magistrates' Court on 20 August 2015. On that date he heard an application by way of complaint by the appellant, Burnley Borough Council (then the complainant) against the (then and now) respondent.[2]The complaint was that the respondent was liable for payment of non-domestic rates in respect of a property in St James Street, Burnley, calculated by reference to a period of non-occupancy from 20 September 2013 to 11 May 2014.[3]The council (as I shall call it) made its case that non-domestic rates in respect of that period were due in a sum somewhat exceeding £40,000. The respondent was and is the owner of that property which is described, I am told, in the title documents as 104-114 St James Street, Burnley, although for rating purposes the relevant valuation list entry describes it as 104-110 St James Street.[4]It is agreed that the rates claimed by the council are due if the whole of the building at 104-110 St James Street is a listed building within the relevant legislation and, conversely, it is agreed that the rates claimed are not due unless the whole of the building is a listed building under that legislation. So the issue is whether the whole of the building is a listed building or not.[5]When the matter came before the District Judge he was shown the relevant provisions in statute and regulations which have been shown to me today and he had cited to him most, though not quite all, the case law cited to me today. In his helpful written case stated he set out, at some length, his understanding of that body of law, his findings of fact and his reasoning and conclusions.[6]That exercise ultimately led him to decide that non-domestic rates in respect of "the property" (as I shall call it) were not due and he therefore dismissed the council's complaint. At the request of the council he stated four questions for answer by this court. I will come back to them.[7]This appeal is governed by rule 52.10 and 52.11 of the Civil Procedure Rules and, in the usual way, pursuant to those provisions I can affirm, set aside or vary the order of judgment below and make various other associated orders. I must allow the appeal if, in my judgment, the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity in the proceedings below. The latter is not suggested so the question for me is whether the decision below was wrong.[8]At the hearing before me today, the parties helpfully indicated that they were in agreement that the factual findings of the District Judge could be derived from his written case stated and, abbreviating his findings somewhat, they were to the following effect.[9]The property now occupying 106-110 St James Street comprises two structures: the larger structure was constructed first. That part of the overall property is what was called the "white part" because it is coloured white in the photographs that I have been shown. I will refer to it as such. The adjacent part at the site at no 104 and continuing along numbers 1-7 Hammerton Road (which I shall call the "red part" as the frontage is of red brick), was constructed later and was described as architecturally more impressive.[10]Before the property, or some of it, was listed it had become one building internally. The two parts of the property, red and white, were constructed separately; as I have said, the white part first. There are differences in visual appearance between the red and white parts. From, at the earliest, the 1970s they have been internally seamless, that is without internal partitioning; and, for various periods they had a single owner in the retail or similar business.[11]At the time of listing in 1977, the property internally was in use as a single unit, though externally the red part and white part looked different from each other, and still do. The dominant entrance is on the corner of Hammerton Road and St James Street where the main door to the premises is located. That is at the number 104 entrance. Previously, there had been multiple entrances but as the District

Judge found:

"[t]his is now one building ... in both form and content."
[12]The statutory scheme, which is not controversial, is as follows. Under what is now section 45 of the Local Government Finance Act 1988, a hereditament is subject to a non-domestic rate when empty if it falls within a class prescribed by the Secretary of State by regulations (section 45(1)(d)). The relevant regulations now are the Non-Domestic Rating (Unoccupied Property) (England) Regulations 2008.[13]In those regulations (regulation 2) a "relevant non-domestic hereditament" is defined as any non-domestic hereditament: "consisting of, or of part of, any building, together with any land ordinarily used or intended for use for the purposes of the building or part ...".[14]Regulation 3 prescribes as subject to a non-domestic rate all relevant non-domestic hereditaments other than those described in regulation 4, which creates exceptions. The relevant exception in this case is that found in regulation 4(e) which makes an exception exempting from non-domestic rates a hereditament which:
"... is included in a list compiled under section 1 of [the Planning (Listed Buildings and Conversation Areas) Act 1990]."
[15]That is the provision governing what are well known as listed buildings. A listed building is, under section 1(5) of the 1990 Act:
"a building which is for the time being included in a list compiled or approved by the Secretary of State under this section ..."
. There are other parts of that section which were to some extent discussed in the proceedings below. But I need not dwell on them for present purposes.[16]As is well known, the Secretary of State in deciding whether to list a building has to consider whether the building is of "special architectural or historic interest." That is section 1(1) of the 1990 Act. References to a building - it is common ground - fall to be construed by reference to the definition of that word in section 336(1) of the Town and Country Planning Act 1990, which states that a building "includes any structure or erection, and any part of a building, as so defined …".[17]Such is the statutory scheme. I was taken to a number of authorities, but they did not generate any significant difference between the parties as to the law. Ms Stockley referred me to the House of Lords’ decision in Shimizu (UK) Ltd v Westminster City Council [1997] 1 WLR 168, [1997] 1 All ER 48l. That case brings in the extended definition of buildings which I have just referred, in section 336(1) of the 1990 Town and Country Planning Act.[18]Ms Stockley submitted that the case is authority for the proposition that the Secretary of State can list part of a building and that proposition is not disputed. On the facts of that case, the listed part of the building in question was its façade, chimney breasts and chimney stacks which were considered to be of special architectural or historical interest. I was referred to the speech of Lord Hope at 492-494 in the All England report.[19]Ms Stockley also relied upon Providence Properties Ltd v Liverpool City Council, of which I was shown a transcript of 17 June 1980. It was decided by a Divisional Court consisting of Lord Lane CJ and Boreham J. That was a rating case like this one. There were three warehouses in a line with two small gatehouses between them. The middle warehouse and the two gatehouses were listed but the warehouses on each of the left and right wings were not.[20]Boreham J, with whom the Lord Chief Justice agreed, held that it was not enough that part of a relevant hereditament was listed in order to obtain the exemption from non-business rates. At page 3 of the transcript he referred to what he called paragraph 2(c), which corresponds to what is now regulation 4(e) of the 2008 Regulations to which I have already referred. He said this:
"In my judgment, the meaning of paragraph 2(c) is clear. If Parliament had wished paragraph 2(c) to apply to part of a hereditament it could have said so and said so very easily ... "
. He held that it was not enough that part of the hereditament was listed. He found no ambiguity or lack of clarity in the case.[21]In City of Edinburgh v Secretary of State for Scotland [1997] 1 WLR 1447, [1997] 3 PLR 71, an issue arose as to whether a former riding school was a listed building. If it was, consent would be required to demolish it. In the House of Lords, it was held that a reporter in a planning appeal had been wrong in deciding that it was not. The only possible construction of the list entry was that it was a listed building.[22]Lord Hope, who agreed with Lord Clyde's leading speech, pointed out that that list is not required to follow any particular format and that a list entry can comprise more than just the name of a building that can include some descriptive material. On the facts of the case it was necessary to look at some of that descriptive material to ascertain the scope of what had been listed and reach the conclusion that the building in question was a listed building.[23]Lord Clyde at page 81 said this:
"Ambiguity only arises if the words in the brackets are read, as the reporter read them, as if they were intended to refer to buildings built during the specified years. But that is not what is stated and that is not the only possible construction. Even if there was a conflict between the two parts of the list it would be proper to find a construction which would make sense of the whole and that can be readily done... ."
[24]He went on to explain how on the facts of that case it could be done. Ms Stockley, for the council, submitted correctly that the City of Edinburgh case is authority that the court can, if necessary, look beyond the name of the building as given in a listing entry, in a case where the name alone creates ambiguity; and in such a case the court can look beyond it to the descriptive elements in the listing entry to resolve such ambiguity.[25]The only other case I need mention is Barratt v Ashford Borough Council [2011] P & CR 21, a Court of Appeal decision in which the leading judgment was given by Mummery LJ, with whom Richards LJ and Aikens LJ agreed. There the issue was whether a particular farm worker's cottage was or was not a listed building. If it was, works being carried out there were unauthorised for want of listed building consent.[26]The Court of Appeal upheld the decision of the recorder below that the building was indeed listed, albeit not by name in the listing entry. That gave as the name and address "High House Cottage, Corkscrew Lane, Stone-cum-Ebony" while the cottage where the works were being done was called "Hayes Cottage, Ebony Road, Stone-cum-Ebony". The Court of Appeal took into account an ordnance survey reference which when looked up on the relevant ordnance survey map included the property in issue, Hayes Cottage.[27]Mummery LJ said this at paragraph 36 and following:
"36. The next question is that of interpretation of the list and its contents in the light of the legislation. What is the proper approach to interpreting an entry in the list? ... the ordinary and natural meaning of a document is usually determined by the court reading it as a whole in the setting of its relevant surrounding circumstances. In my judgment, the court must consider [the] whole of the entry in order to determine the meaning it would have for the reasonable person inspecting the list. 37. The judgments in the City of Edinburgh case took that approach. Lord Clyde, with whom all the other members of the Appellate committee, including Lord Hope, agreed, said that the question of what buildings are listed is one of interpretation and is a question of law for the court. It is not a question of fact. I agree with Mr Harrison that it is not a matter of the subjective intentions of those participating in, or responsible for, the compilation of the list, nor is it a matter that depends on the actual state of knowledge of the person potentially affected by an entry in the list. In short the Court's aim is for an objective contextual interpretation of the listing as a whole ... 39. 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 really matters is whether, on a sensible contextual reading of the whole entry, its effect is clear and precise enough to identify the listed building. 40. 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, a 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. …"
[28]Mummery LJ went on to discuss, as part of the context, the relevant local history in the case before the court and noted at paragraph 44 that the legislative regime requires compilation of an official list of buildings, not an official list of names.[29]No point of law divided the parties as a result of considering and drawing to my attention those authorities. It is common ground that they guide me in this appeal. The list entry itself is obviously a very important document. Under the heading "Location" it says "104 St James Street, 1-7 Hammerton Road". There was also a description as follows:
"Includes numbers 1-7 Hammerton Street shop (upper floors unoccupied 1991) 1891 altered red brick in flemish bond with dressings of but terracotta roof concealed but probably slate. Eclectic style narrow platform plan on corner site parallel to Hammerton Street, four stories with a five window facade to Hammerton Road, a splayed and a single window facade to St James Street. The ground floor is occupied by C20 shop frontages. The upper floors have terracotta string courses and some pilasters and vertically linked terracotta pilastered architraves to the windows. Those at first floor round headed and those at second and third floors square headed and coupled. All with geometric panels over them. The fourth and fifth bays are more elaborately treated with richly ornamented terracotta timpani to the windows and the splayed corner and single window returned to St James Street are almost entirely of similarly decorated terracotta. Interior altered forms group with numbers 9-29 odd Hammerton Road ..."
[30]Ms Stockley, for the council, submitted that the location entry is unambiguous and that it refers to the red part of the building only, not the white part. Alternatively, she submits that if there is an ambiguity, such that the description as well as the location can be looked at, the description refers only to features relating to the red part. There is no reference to what is found in Nos 106-110, the white part. It is no answer to that, she submitted, that the white part of the land is not expressly excluded from the description. The purpose of the list is to say what is listed, not what is not.[31]So far as the surrounding context was concerned, I understood her submission to be that the context was limited to looking at the photographs which she showed me and that it did not extend to questions of use of the property at the time of listing. As to the District Judge's decision below, she criticised his references to what he called the "intention" of the Secretary of State.[32]It was irrelevant whether the Secretary of State subjectively intended to include the white part in the listing. The only conclusion open to the District Judge was to find that the red part was the only part listed, she submitted. His approach ran counter to the authorities which showed, clearly, that it is possible for part only of an internally seamless building to be listed and he went too far beyond the wording of the listing entry itself by considering questions of the internal use of the building.[33]Mr Dixon, for the respondent, noted that the property comprising the red and white parts has been variously described in different places and that the address is an inadequate way of describing it, since it has been referred to variously as 104-110 St James Street, in the council's valuation list for rating purposes, and as one 104-114 in the title documents. He pointed out that some descriptions refer to the part that fronts 1-7 Hammerton Road and others do not.[34]These are all descriptions, he said, describing the same building which is that shown in the photographs as the sum of the red and white parts. He accepted that it would be appropriate to look at the listing entry and submitted this was a case, like the City of Edinburgh case, where the given location of the building is not sufficient to identify what was listed and that the name and address is not the end of the matter either.[35]In the present case it will be recalled the location was given as 104 St James only and 1-7 Hammerton Road. Mr Dixon submitted that if one applies the approach of Mummery LJ in Barratt, adopting a sensible contextual interpretation of the listing entry as a whole, then the context includes the physical reality of the building; and that so far as that was concerned the red and white parts had no separate existence from each other. There was no means of defining separately the part which relates to 104 St James Street, as distinct from the part which relates to 106-110; internal subdivisions had gone before 1977.[36]Mr Dixon submitted that there is ambiguity because the location description in the listing entry is unreal; it describes a part of a single building. The case was therefore quite unlike one such as Providence, where multiple buildings adjoin each other. He submitted that nothing in the description here excludes the white part of the property. His argued that where a building is a single entity and the language describing it does not exclude it from being a single entity, the conclusion must be that the whole of that single entity building is what is listed; the District Judge therefore reached a permissible conclusion.[37]The four questions asked by the District Judge were to the following effect:(1) The first was whether he was correct to find that where a listing "only expressly refers and is intended only to expressly to refer to a part of a building rather than the whole of it, the whole of the building can nevertheless be treated as subject to the statutory listing ...".(2) Secondly, he asked whether it was correct that "in considering whether a non-expressly listed part of a building is an object or structure fixed to a listed building which is to be treated as part of the building ..." and where there is "a very clear and deliberate physical connection between the buildings and joint use", "little or any significance need be given to whether or not the non-expressly listed part of the building is subordinate or ancillary to the part that is expressly listed." I pause there to observe that neither party submitted that I need answer that question, since it appears to refer to a tangential portion of the argument below and it is not capable of resolving the appeal, however it is answered.(3) Thirdly, the District Judge asked whether it was correct to find that: "Where two buildings have been combined to such an extent that they become internally distinguishable from one another yet retain some outward physical differences and where neither one can be said to be subordinate to the other ... the listed status of one attaches to the other by virtue of it being a new hole ..."(4) Finally, he asked the following question: whether it was correct that the word "building" in section 1(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990 should be given the extended meaning of including a part of a building, unless the context otherwise requires ...".[38]The parties are agreed that the answer to that fourth question is yes but that it does not suffice to resolve the appeal. Although the four questions were put in the case stated document in that way, the real issues at the heart of the appeal are: first, what was comprised within the listing done by the Secretary of State in 1977; and secondly – specifically - was it the whole of the red and white parts together of the property, or just the red part? Thirdly, I must decide following on from the answers to those questions whether the judge was right or wrong to find that the rates claimed were not due.[39]I turn to my reasoning and conclusions. Applying the approach which is most helpfully set out in Mummery LJ's judgment in Barratt, it is clear to me that the surrounding context needs to be considered. I do not think that this is a case where liability to rates can be determined by reading the location only, which, as I have said, states: "104 St James Street, 1-7 Hammerton Road".[40]It is not disputed that the surrounding context, against which the listing entry as a whole must be construed sensibly, includes the photographs showing the appearance of the building. Although those photographs were taken last year and not in the 1970s, it was not suggested to me by either party that the characteristics or features of the red and white parts of the property taken together had altered materially since the 1970s; and neither party sought to submit that I should not take account of the appearance of the building.[41]That seems to me, with respect, sensible and correct, since the Secretary of State when making the listing entry in 1977, clearly had in mind what this property's appearance was. I note that the District Judge, unlike myself, undertook a visit to the site and inspected the property, no doubt from close range. So he, like the Secretary of State before him, had an appreciation and awareness of the features and characteristics of the property.[42]I do not accept that therefore, that this is a case where the court should not look at the descriptive material within the listing entry. That material itself includes the words "interior altered". It is also common ground that the interior had indeed been altered before 1977, to make the property into a single unit internally, as the judge found, so it is not surprising to find those words in the descriptive part of the listing entry.[43]I have looked carefully at the description taken as a whole, in the context of the building's appearance, the description of the location and the brief history, including the point that the white part was constructed before the red part. There are certain difficulties in the way in which the learned District Judge expressed his reasoning. He did not need to focus on what became question 2 of his four questions; and his references to the intention of the Secretary of State are difficult because he did not distinguish between objective and subjective intention.[44]It would have been better had he made very clear that it was to the former and not the latter that he was directing himself. But in the end I am not persuaded that he misunderstood the law, even though he could have expressed it more clearly in his findings as set out in the case stated document. It seems to me that he did apply the approach ordained by Mummery LJ in Barratt and, before him, in their Lordship's House in the City of Edinburgh case.[45]I am not persuaded that he was misled into asking himself the questions that he did and directing himself to the description in the listing entry. Nor do I accept that he went further than was permissible in alluding to the history and context. It seems to me that the Secretary of State and those advising at the time would have been alive to the salient features of the history of this construction, as well as the architectural ones; and, indeed, the description itself refers to alteration of the interior. So that is part of the description and not merely the surrounding context.[46]It is true that the description, as Ms Stockley has submitted, focuses on the red part of the building and does not appear expressly to say anything about those parts of its exterior comprising the white part. But, as against that, and as the District Judge was aware, this had been for a considerable time a single property internally with a seamless interior in sole retail trade ownership.[47]In the end, although the case is not entirely straightforward for the reasons I have given, I am not persuaded that the conclusion reached by the District Judge was impermissible; and I am not satisfied, in the words of rule 52.11 of the Civil Procedure Rules, that this is a case where the decision below was wrong. For those reasons I will uphold the decision and I will not allow this appeal.[48]So far as the questions asked in the case stated document are concerned, it does not seem to me necessary to answer those that I have not already dealt with. I refer to questions 1 and 3. It seems to me that those questions are posed in a form which is insufficiently tied to the factual context of the present case and are formulated as if they were propositions of law when in truth they turn on the factual context of this case.[49]So my answers to them would add nothing on the facts and, if presented as abstract propositions of law, could mislead but are not capable of being applied in other factual contexts. For those reasons I do not propose to say anything further about questions 1 and 3 or the other questions in the case stated document. [Discussion about costs followed.]