THE AUTHORISATION OF DEMOLITION BY GRANT OF FACULTY
Introduction
1.
Works to churches of the Church of England, including for their demolition, are
controlled by two parallel systems of control, under the Care of Churches and
Ecclesiastical Jurisdiction Measure 1991 and the Mission and Pastoral Measure 2011.1
In general terms, the former deals with churches that are in use for regular public
worship; the latter concerns those that are no longer so used.
2.
Canon F13(3) provides that a faculty is required if “any alterations, additions, removals
or repairs are proposed to be made in the fabric, ornaments or furniture of the
church”. A faculty under the 1991 Measure is thus required for the carrying out of
works to a church that is in use – that is, the alteration or extension of such a church,
or the introduction into it of a new item, or the reordering of its interior, or the
disposal of items no longer required.
3.
However, once a church ceases to be in use for regular public worship, its future will
normally be controlled by the parallel system of control under the 2011 Measure. That
system provides for the mission and pastoral committee of the diocese to find an
alternative use for a building no longer required. Where such a use is not forthcoming,
and the Churches Conservation Trust is not willing to acquire it, it may be demolished
under the terms of a “pastoral (church buildings disposal) scheme”.
4.
It follows that a faculty will not normally be sought or granted for the demolition of a
church that is no longer in use for regular public worship. In other words, a faculty will
only be sought for the demolition of a church if it is to remain in use. That apparently
paradoxical proposition explains section 17(1) of the 1991 Measure, which provides
that a faculty for the demolition or partial demolition of a church may only be granted
where it comes within s 17(2) or (3); and those subsections then provide that:
“(2) Subject to the following provisions of this section, a court may grant a faculty for
the demolition of the whole or part of a church if it is satisfied that another church or
part of a church will be erected on the site or curtilage of the church or part of a church
in question or part thereof to take the place of that church or part of a church.
(3) Subject to the following provisions of this section, a court may grant a faculty for
the demolition of part of a church if it is satisfied that—
5.
1
(a)
the part of the church left standing will be used for the public worship of
the Church of England for a substantial period after such demolition; or
(b)
such demolition is necessary for the purpose of the repair or alteration of
the church or the reconstruction of the part to be demolished.”
This means that a court may only grant a faculty for the demolition of the whole of a
church if it is satisfied that another church or part of a church will be erected on all or
part of the site or curtilage of the church in question, to take the place of that church
being demolished.
Replacing the Pastoral Measure 1983 and amending legislation
6.
And a court may only grant a faculty for the demolition of part of a church, if it is
satisfied that:
(2)[b] another church or part of a church will be erected on all or part of the site
or curtilage of the part of a church in question or part thereof, to take the
place of the part of a church being demolished; or
(3)(a) the part of the church left standing will be used for the public worship of
the Church of England for a substantial period after such demolition; or
(3)(b) such demolition is necessary for the purpose of the repair or alteration of
the church or the reconstruction of the part to be demolished.
7.
These provisions are reasonably straightforward. They do not of course mean that
“demolition” must always be authorised in any of these circumstances, simply that a
petitioner has to show that the proposed works come within one or other of the above
categories.
8.
It is presumably for this reason that Form 2 (the faculty petition) includes a question
(9) inviting a petitioner for a faculty to state whether the proposed works include
“demolition of the whole or any part of the church” and, if so, to provide details in
accordance with section 17. In practice, very few if any petitioners state that their
proposal does involve demolition. And there are special provisions in Form 1 (DAC
certificate) relating to faculty petitions involving partial demolition said to be justified
under section 17(3)(b), at paragraph 3 – again, rarely if ever used.
The meaning of “demolition”
9.
The word “demolition” is not defined either in the 1991 Measure or in the Town and
Country Planning Act 1990 (“the Planning Act”) or the Planning (Listed Buildings and
Conservation Areas) Act 1990 (“the Listed Buildings Act”); the provisions of the two
Acts relating to demolition are set out as Annexes A and B to this Note, and the
requirements as to consultation under the provisions of the Listed Buildings Act as
Annex C. However, the meaning of “demolition” in the latter Act has been considered
at length by the House of Lords in Shimizu (UK) Ltd v Westminster CC.2 The relevant
parts of the speech of Lord Hope are contained at Annex D.
10.
In short, “demolition, with or without replacement, on the one hand, and alteration,
on the other, are mutually exclusive concepts. In relation to a building, its destruction
and breaking up cannot constitute a mere alteration. Once the works are over, the old
building has gone”.3 The removal, to use a neutral word, of part of a listed building –
such as the demolition of one wing of a country house, or the removal of a balcony (or
an internal feature such as a staircase) – is thus, on that analysis, properly treated as
the alteration of the whole, not demolition of that part.
11.
However, it should be noted that Lord Hope’s analysis also flows from the previous
passage in his speech, where he concludes that “a listed building” in the Listed
Buildings Act always means the whole of the listed building, and not part of it.
2
[1997] 1 WLR 168, HL.
see paragraph [2]. Note that the paragraph numbers in the extract at Annex D have been added for clarity of
exposition.
3
Compare the definition of “building” in section 336 of the Planning Act, which includes
“part of a building”. Sections 7 and 8 of the Listed Buildings Act, reproduced at Annex
C, thus refer only to the demolition of [the whole of] the listed building, and the
alteration of one. There is no concept of the demolition of part.
12.
However, Lord Hope did explicitly extend the concept of “demolition” to include works
consisting of the removal of all but the façade of a building, which would go far beyond
what could reasonably be described as “alteration”.
13.
More recently, in R (Save Britain’s Heritage) v Secretary of State, the Court of Appeal
explored the meaning of the word “demolition” in the Planning Act.4 Sullivan LJ noted
that “while demolition is the antithesis of construction, the act of demolition, when
coupled with the restoration of a site, is capable of creating something that is new: e.g.
an open and hard surfaced or grassed area where there was once a building.”
14.
There seems no obvious reason why, in the absence of a definition, the same approach
to interpretation – including any other judicial authorities, and of course any further
cases yet to be decided – would not apply equally to discover the meaning of
“demolition” in the 1991 Measure.
“Partial demolition” in the 1991 Measure
15.
Unlike the Listed Buildings Act, the 1991 Measure currently refers at section 17(2) to
“the demolition of the whole or part of a church” (emphasis added). It thus introduces
the concept of “demolition of part”. To adapt Lord Hope’s dictum in Shimizu, in
relation to a part of a building, its destruction and breaking up cannot constitute a
mere alteration of that part.
16.
However, in theory, demolition of part would include not only the removal of the
chancel but also the removal of a single pew (assuming that the pew was a fixture and
thus part of the church) – or even, in theory, the shortening of a pew. That potentially
brings in the special procedure outlined in section 17(4) in very many cases involving
the removal of some small element of the church. That is regardless of whether either
the church as a whole or the part in question is of any special architectural or historic
interest or of none whatsoever. It is not surprising that, as already noted, very few
petitions are framed on the basis that they involve demolition of all or part of a church.
17.
There would seem to be no reason to reason to classify the removal of part of a church
as “demolition”; it would be preferable to harmonise the definitions with those in the
Listed Buildings Act. This could be done by omitting:

all references to “the whole or part of” in section 17(2);

the whole of section 17(3), and

the words “or (3)(a)” in section 17(4) and (5).
The word “demolition” need not be defined; or it could be defined as having the same
meaning as in the Listed Buildings Act.5
4
5
[2011] CMLR 48, CA.
And indeed a definition of “Listed Buildings Act” could be included.
18.
That would mean that works that are currently classified as “demolition of part of a
church” would then be classified as “alteration of a church”, and petitions for such
works treated on the same basis as any other proposal for works to alter a church.
Some proposals would thus require to be advertised or notified, others would not,
depending on the sensitivity of the building or the part of the building concerned and
the nature and scale of the works concerned.
19.
There also seems to be no basis for section 17(6)(a), if partial demolition is strictly
defined. Arguably, any proposal to remove (that is, demolish) part of a church
amounts to the alteration of the church. However, the removal of some parts of a
church (whether listed or not) – for example, for the removal of an ugly 1930s boiler
room – might affect its appearance, and might indeed improve its character. But by
virtue of section 17(6)(a), it would not be lawful for the court to authorise such a
beneficial change. Section 17(6)(a) should thus be repealed.
“Total demolition” in the 1991 Measure
20.
21.
A petition can be brought for the demolition of the whole of a church only if it is to be
replaced by another church: see section 17(2), and paragraph 5 above.
Such a petition then has to be dealt with in accordance with section 17(4), that is:

the Bishop has to give his written consent;

the petition has to be advertised in the London Gazette;

it has to be advertised in the local press;

it has to be notified to the CBC6 and the DAC, and any advice given has to be
taken into account;

there has to be an oral hearing, at which the CBC has to produce oral
evidence.
22.
The second of these requirements is of no practical utility, since the London Gazette is
a paper of record, and is most unlikely to generate representations. The third and
fourth should properly be dealt with in procedural rules, not on the face of the
Measure. There may or may not be a need for an oral hearing, but this should be
decided by the Chancellor. Arguably, this too could best be dealt with by way of an
appropriate amendment to the Faculty Jurisdiction Rules 2000 (in particular, rules 17
and 26).
23.
The only remaining requirement is that the Bishop should give his written consent.
This seems sensible in the case of a proposal for the total demolition of a church,
although not for the demolition of only part.
24.
It might also be appropriate for a petition for total demolition to be notified to the
diocesan mission and pastoral committee, established under the 2011 Measure.
6
The 1991 Measure still refers to the Council for the Care of Churches; this should be amended.
Special protection for churches of special interest
25.
Where a church is listed or in a conservation area, extra care is necessary in the
determination of any faculty petition to ensure that its special interest is fully taken
into account.
26.
Thus in the [secular] planning system, planning permission is needed for development;
but that does not generally include demolition. This is achieved by section 55(1A) of
the Planning Act, which includes demolition, and section 55(2)(g), which enables the
Secretary of State to exclude it – both provisions added in 1992, following the decision
of the Court of Appeal in Cambridge CC v Secretary of State.7 The intention of the
Government at the time was to exclude almost all demolition, which was sought to be
achieved by a direction issued in 1995 under powers in s 55(2)(g). Unfortunately that
direction was recently quashed by the Court of Appeal in R (Save Britain’s Heritage) v
Secretary of State;8 a similar replacement direction will presumably be issued in due
course. However, although the demolition of a building that was listed did not (until
the 1995 direction was quashed) require planning permission, it did require listed
building consent – and carrying out demolition without such consent was a criminal
offence under section 9 of the Listed Buildings Act.
27.
Similarly, many relatively trivial alterations do not require planning permission (by
virtue of Planning Act, s 55(2)(a)) or are granted planning permission by a general
development order. But listed building consent is required for any alterations that
affect the character of a listed building as a building of special architectural or historic
interest.
28.
And conservation area consent is required for the demolition (as defined in Shimizu) of
an unlisted building in a conservation area, although not for its alteration (Listed
Buildings Act, s 7, applied by s 74).
29.
It is therefore not surprising that special procedures apply to the demolition of all or
part of a church that is listed or in a conservation area – see s 17(5) of the 1991
Measure. These require that a faculty for the demolition of all or part of a church that
is listed or in a conservation area shall not be granted unless the petition has been
notified to the Secretary of State, the local planning authority, English Heritage, and
the national amenity societies.
30.
However, similar procedures already apply to the submission and determination of a
petition for a faculty for the alteration of a church that is listed or in a conservation
area – see in particular 2000 Rules, r 3(3) (petitions to be accompanied by additional
information); r 3(7), Appendix B (requirement to consult amenity bodies); r 13(3),(4)
(petition to specially notified); and r 15(1) (consultation with CBC). And much case law
has grown up over the years emphasising the desirability of avoiding harm to listed
churches (see, for example, Re St George the Martyr, Holborn;9 Re St Luke,
Maidstone;10 Re Sherborne Abbey;11 Re Great Malvern Priory;12 and St Mary
Magdalene, Reigate13).
7
(1992) 90 LGR 275, 64 P&CR 257, [1992] 1 EGLR 101, JPL 644, CA.
[2011] CMLR 48, CA; see Annex B.
9
(1997) 5 Ecc LJ 67, London Consistory Court.
10
[1995] Fam 1, Court of Arches.
8
31.
If those provisions apply to the alteration of a church that is listed or in a conservation
area – in so far as that can be distinguished from the demolition of part of such a
church – they would apply even more so to a proposal for the demolition of part of
such a church, let alone one for its total demolition.
32.
Further, the corresponding requirements as to the notification of applications for listed
building consent – set out in directions by the Secretary of State, summarised at Annex
E to this note – are significantly less onerous than those under the 1991 Measure and
the 2000 Rules. In particular, the national amenity societies do not have to be notified
of applications for the alteration (as opposed to the demolition) of a listed secular
building or any applications for works to an unlisted church in a conservation area.
And neither they nor English Heritage have any right to insist on (as opposed to asking
for) an oral hearing.
33.
It would seem to be sensible to bring (and keep) the two sets of requirements into line
as far as possible; but this should generally be done by adjusting the rules, not the
Measure. It might however be sensible to include an explicit provision requiring
faculties – whether for demolition or alteration – to be notified to such persons or
organisations as may be specified in rules made under section 26.
34.
Note that the relevant provisions of the 2011 Measure also make special provisions for
the demolition of churches that are no longer required for regular public worship
where they are either listed or in a conservation area (see proviso to section 61(1)).
Emergency works
35.
Section 18 of the 1991 Measure currently enable a chancellor to authorise emergency
works for the demolition of a whole or part of a church, without a faculty having to be
obtained.
36.
In accordance with the principles outlined above relating to partial demolition, the
reference to partial demolition should be deleted.
37.
However, more significantly, it is surprising that a chancellor may authorise the total
demolition of a church under this provision, but not the carrying out of more minor
works for alteration or repair, which would normally require a faculty. Thus, for
example, in the increasingly common situation where lead is removed form the roof of
a church, it may be appropriate for it to be replaced with a different material.
38.
The present arrangement to obtain a confirmatory faculty does not work satisfactorily
in practice in such cases, as realistically it is very unlikely that a parish will be forced to
remove what has been done in an emergency; and the bureaucracy associated with
obtaining such a faculty after the works have been completed is understandably seen
as a time wasting chore.
39.
It would therefore make more sense for the provision to be extended to enable a
chancellor to authorise in an emergency any works necessary for health, safety or the
preservation of the building.
11
[1996] Fam 63, Court of Arches.
[2009] PTSR 1408, Worcester Consistory Court.
13
2010, unreported, Southwark Consistory Court.
12
Other reforms to the 1991 Measure
40.
If section 17(5) is to be retained, references in paragraph (c) to the Royal Commission
should be replaced by references to English Heritage, in line with the corresponding
change made to section 8(2) of the Listed Buildings Act, by the Authorisation of Works
(Listed Buildings) (England) Order 2001.
41.
Section 17(7) is spent, and can be repealed.
42.
The 2011 Measure now consistently refers to used for “regular public worship”. This
makes sense, as many buildings are used for worship, and some for public worship, but
not on a regular basis. It would be sensible to amend the 1991 Measure (and the
Inspection of Churches Measure 1955 and the Faculty Jurisdiction Measure 1964, each
amended by the 1991 Measure) accordingly, so that the references to buildings and
ruins used for public worship, largely in relation to defining the scope of faculty
control, were also to those used for regular public worship.
43.
The references to the Council for the Care of Churches in the 1991 Measure should be
updated, since there is no relevant definition in the interpretation section.
44.
Annex F to this Note contains suggested amendments to the 1991 Measure, to give
effect to the various suggestions made above.
Consequential reforms to the 2000 Rules
45.
The provisions relating to consultation with heritage bodies need to be redrafted to
take account of faculty petitions for demolition. Further, the existing provisions
relating to such consultation, in Appendix B to the 2000 Rules, are unhappily drafted,
and could usefully be tightened up as part of the present exercise.
46.
In addition, Part 2 of Form 1 (the DAC certificate) contains three different provisions
requiring the DAC to certify the effect of the works, for different purposes – one of
which relates to demolition works, under section 17(6)(a) of the Measure (referred to
above). These could usefully be conflated into a single statement, and the Form
redrafted accordingly.
47.
Annex G to this Note contains suggested amendments to the 2000 Rules, to give effect
to the various suggestions made above.
Charles Mynors
25 August 2011
Annex A.
Extract from Town and Country Planning Act 1990
55.— Meaning of “development” and “new development”.
(1) Subject to the following provisions of this section, in this Act, except where the context
otherwise requires, “development,” means the carrying out of building, engineering, mining or other
operations in, on, over or under land, or the making of any material change in the use of any
buildings or other land.
[(1A) For the purposes of this Act “building operations” includes—
(a) demolition of buildings;
(b) rebuilding;
(c)
structural alterations of or additions to buildings; and
(d) other operations normally undertaken by a person carrying on business as a builder.]
(2) The following operations or uses of land shall not be taken for the purposes of this Act to
involve development of the land—
(a) the carrying out for the maintenance, improvement or other alteration of any building
of works which—
(i)
affect only the interior of the building, or
(ii)
do not materially affect the external appearance of the building,
and are not works for making good war damage or works begun after 5th December
1968 for the alteration of a building by providing additional space in it underground;
(b) to (f)
[not relevant]
[(g) the demolition of any description of building specified in a direction given by the
Secretary of State to local planning authorities generally or to a particular local planning
authority.]
(2A) – (5)
[not relevant]
57.— Planning permission required for development.
(1) Subject to the following provisions of this section, planning permission is required for the
carrying out of any development of land.
(2)-(7)
[not relevant]
Subsection (1A) and paragraph (2)(g) added by Planning and Compensation Act 1991, section 13,
with effect from 27 July 1992
Annex B.
Extract from Planning (Listed Buildings and Conservation Areas) Act 1990
7. Restriction on works affecting listed buildings.
(1) Subject to the following provisions of this Act, no person shall execute or cause to be executed
any works for the demolition of a listed building or for its alteration or extension in any manner
which would affect its character as a building of special architectural or historic interest, unless the
works are authorised under section 8.
(2) Subsection (1) is subject to section 33(1) of the Planning Act 2008 (exclusion of requirement for
other consents for development for which development consent required).
8. Authorisation of works: listed building consent.
(1)
Works for the alteration or extension of a listed building are authorised if—
(a) written consent for their execution has been granted by the local planning authority or
the Secretary of State; and
(b) they are executed in accordance with the terms of the consent and of any conditions
attached to it.
(2) Works for the demolition of a listed building are authorised if—
(a) such consent has been granted for their execution;
(b) notice of the proposal to execute the works has been given to the Royal Commission;
(c)
after such notice has been given either—
(i)
for a period of at least one month following the grant of such consent, and before
the commencement of the works, reasonable access to the building has been
made available to members or officers of [the Commission] for the purpose of
recording it; or
(ii) the Secretary of [the Commission], or another officer of theirs with authority to
act on their behalf for the purposes of this section, has stated in writing that they
have completed their recording of the building or that they do not wish to record
it; and
(d) the works are executed in accordance with the terms of the consent and of any
conditions attached to it.
(3) Where—
(a) works for the demolition of a listed building or for its alteration or extension are
executed without such consent; and
(b) written consent is granted by the local planning authority or the Secretary of State for
the retention of the works,
the works are authorised from the grant of that consent.
(4)-(6) [spent]
(7)
Consent under subsection (1), (2) or (3) is referred to in this Act as “listed building consent”.
Section 7 amended by Planning Act 2008.
Words in square brackets in section 8 substituted (in placed of “the Royal Commission”) by
Authorisation of Works (Listed Buildings) (England) Order 2001, art 2, with effect from 2 February,
2001. “The Commission” refers to English Heritage.
Annex C.
Summary of requirements to notify applications for listed building consent
(Annex A to Circ 09/2005; Annex B to DCLG Circular 08/2009)
Local planning authorities (LPAs) to notify the national amenity societies of applications for listed
building consent for
 for works for the demolition of a listed building; or
 for works for the alteration of a listed building which comprise or include
the demolition of any part of that building.
(Circular 01/2001, Direction, paragraph 15(1) as amended by Circular 09/2005).
Outside Greater London, LPAs to notify English Heritage of
 all applications affecting Grade I and Grade II* listed buildings, and of
 those affecting Grade II (unstarred) buildings which involve
o the demolition of the principal building,
o the demolition of a principal external wall of the principal building, or
o the demolition of all or a substantial part of the interior of the principal building.
Where English Heritage or any of the National Amenity Societies object to the proposal and have said
they require the Secretary of State to be notified, and the authority is minded to grant consent, the
LPA should notify the Secretary of State.
(Circular 01/2001 Direction paragraph 15(2)(a), and Circular 08/2009, Direction, paragraph 4(1))
In Greater London, LPAs to notify English Heritage of the following applications, and to seek English
Heritage’s authorisation before granting listed building consent:
 all applications affecting Grade I and Grade II* listed buildings;
 applications affecting Grade II (unstarred) buildings which involve
o the demolition of the principal building,
o the demolition of a principal external wall of the principal building, or
o the demolition of all or a substantial part of the interior of the principal building;
 applications for Grade II (unstarred) principal buildings which
o are railway stations (including underground stations), theatres, cinemas, bridges across
the Thames, or
o are owned by the LPA in its area but where the application is made by someone other
than the authority; and
 applications for curtilage buildings to Grade II (unstarred) principal buildings which are railway
stations (including underground stations).
(Section 14 of the Act and Circular 01/2001, Direction, paragraph 15(2)(b))
Applications by English Heritage for listed building consent for its own properties to be referred by
the LPA to the Secretary of State.
(Circular 01/2001, Direction, paragraph 35)
Applications by a LPA itself for listed building consent in respect of a building in its own area to be
made to the Secretary of State.
(Section 82 of the Act and regulation 13 of the Planning (Listed Building and Conservation Areas)
Regulations 1990).
Annex D.
Extract from the speech of Lord Hope in Shimizu (UK) Ltd v Westminster City Council
[1997] 1 WLR 168
The meaning of “demolition”
[1]14 The meaning which I would give to the expression “listed building” leaves little room for
discussion about the meaning of the word “demolition” in this context. But as it received close
attention in the Court of Appeal I think that it is necessary to examine the word more closely in order
to see whether it is still possible to support the view, contrary to that taken by the member in the
Lands Tribunal, that the works which were proposed in this case were works of demolition rather
than works of alteration or extension for the purposes of section 27(1) of the Act of 1990.
[2] According to its ordinary meaning, the word “demolish” when used in reference to a building
means to pull the building down — in other words, to destroy it completely and break it up. I agree
therefore with Millett LJ when he said that demolition, with or without replacement, on the one
hand, and alteration, on the other, are mutually exclusive concepts. In relation to a building, its
destruction and breaking up cannot constitute a mere alteration.15 Once the works are over, the old
building has gone. The problem which led the majority in the Court of Appeal to hold that the works
which were proposed to the chimney-breasts amounted to works of demolition and not alteration
arose when they applied these words to a part only of the listed building — that is, to the chimneybreasts, not to the whole building.
[3] I can see the force of the observation, which appears in the same passage in Millett LJ's
judgment and is then the subject of careful examination in the judgment of Sir Ralph Gibson, that the
demolition and replacement of a part of a building cannot constitute an alteration of that part. The
replacement of that part, as they pointed out, was to be a substitute for the old, not an alteration of
it. Millett LJ then recognised, at pp. 169–170, correctly in my opinion, that, while the demolition and
replacement of part of a building cannot constitute the alteration of that part, it can constitute an
alteration of the whole. He said that this approach would provide a test which was at once workable
and provided some explanation of the legislative purpose in awarding compensation for the refusal
of consent for alteration and withholding it for demolition. As he put it, at p. 170:
“The test would be whether the application, however worded, could fairly be described as an application to
alter a listed building by demolishing or demolishing and replacing part. It would not matter how extensive
the alterations were; major alterations qualify for compensation: indeed, the alterations must be significant
enough to affect the character of the building or consent would not be required in the first place. What
mattered would be what was left. The question would be whether those parts which were not to be
demolished or demolished and replaced were sufficient to enable the application to be fairly described as
an application to alter the building by demolishing part rather than as an application to demolish the whole
or substantially the whole of the building.”
[4] The provision in the Act of 1990 which persuaded Millett LJ and Sir Ralph Gibson to reject this
approach is section 8. This section deals separately with works of alteration or extension on the one
hand and works of demolition on the other. It deals with the procedure for authorisation, where
listed building consent is being sought. There is a difference in procedure between works of
alteration or extension and works of demolition, although the procedure may perhaps more
accurately be regarded as a single procedure with additional requirements in the case of demolition
works. Where works of alteration or extension are involved, all that is needed is written consent for
their execution given by the local authority or by the Secretary of State and that the works are then
executed in terms of the consent and of any conditions attached to it. Where works of demolition
are involved, notice of the proposal must also be given to the Royal Commission and one or other of
14
15
Paragraph numbers added for clarity of exposition.
[1995] 1 EGLR 167, CA, at p 169.
the periods referred to in section 8(2)(c), which I have already quoted, must then be allowed to
elapse.
[5] The question whether the word “building” in the phrase “listed building” has the extended
meaning given to it in the principal Act lies at the heart of the discussion about section 8 of the Act of
1990. As the majority in the Court of Appeal pointed out, if the demolition of part can also constitute
an alteration of the whole, then such works will be authorised works if section 8(1) is satisfied even
though notice has not been given to the Royal Commission in accordance with subsection (2) before
the works are commenced. I agree that it cannot have been the intention of Parliament that works
for the demolition of a listed building should be authorised where the provisions of subsection (1)
only were satisfied. But I do not agree with the assumption on which this proposition has been
based. In my opinion the whole difficulty is removed if the phrase “listed building” is given the
meaning which I have suggested should be given to it in the earlier part of this opinion. There can
then be no question of the word “demolition” within the meaning of the Act being applied to works
of alteration which affect only part of a listed building.
[6] It is important to notice also that the requirement to notify the Royal Commission under
section 8(2) assumes that listed building consent for the execution of the works has already been
granted by the local planning authority or by the Secretary of State. The purpose of this requirement
is confined therefore to enabling the Royal Commission to obtain access to the building and record it
before the commencement of the works. While the maintenance of an inventory of buildings of
special architectural or historic interest is an important part of the Commission's functions, this is not
the stage at which it can express views as to whether it is appropriate for the proposal to receive
listed building consent. An opportunity will already have been given to the Commission and to the
Historic Buildings and Monuments Commission to express any views at the earlier stage before the
application is disposed of under the procedures laid down by the Secretary of State under section
15(5) by means of Departmental Circular No. 8/87 . The structure of the legislation as it operates in
practice cannot be understood without a full appreciation of the wide powers of regulation and
direction which have been given in these matters to the Secretary of State and the way in which
these powers have been exercised. For present purposes however it is sufficient to say that the
requirement for notification in section 8(2) is concerned essentially with record-keeping and not with
the question whether or not listed building consent should be granted for the proposed works.
[7] As I have said, section 8(2) can be read with perfect sense if the word “building” is taken, in the
context of these provisions, to mean simply the building or part of a building which is for the time
being included in the list as a listed building. If that building or part of a building — the “listed
building” — is to be pulled down, so that it will be destroyed completely and broken up, the works
will amount to its destruction to which the additional procedure in section 8(2) will always apply.
Works which involve the pulling down and breaking up of part of the building, falling short of its
destruction, will fall within the expression “alteration” which, if they would affect its character as a
building of special architectural or historic interest, will require consent to be sought under section
8(1).
[8] I should like to make it clear that I do not see the word “demolition” as applying only where
the proposal is that every single part of the listed building should be pulled down. It is now
commonplace, especially in towns and cities, where the exterior of a building contributes to the
architectural or historic interest of a group of buildings such as buildings in a terrace, for the façade
to be left standing while clearing the remainder of the site for redevelopment. That indeed is what
was done in this case. As section 17(3) has envisaged in the case of demolition works, planning
permission for the redevelopment of the site was granted at the same time as the original proposals
received listed building consent and conservation area consent. It seems to me to be plain that the
original proposal was for the demolition of the listed building for all practical purposes, so that a
scheme of redevelopment could be carried out. It went far beyond what could reasonably be
described as its alteration, as the works were so extensive and so much was to be pulled down and
taken away, although the façade and the chimney-breasts and chimney-stacks were to be retained.
The question is ultimately one of fact for the decision of the Lands Tribunal, and I do not think that
any more precise definition of this expression is required.
[9] We were referred to Lord Diplock's observations in Customs & Excise Commissioners v Viva
Gas Appliances Ltd, where he said that the word “demolition” meant destroying the building as a
whole.16 That case was concerned with a phrase in the description of an item in Group 8 of Schedule
4 to the Finance Act 1972 relating to value added tax, where there was no reference to “any part of a
building.” What had to be construed was the meaning of “demolition” when it appeared in the
phrase “in the course of the construction, alteration or demolition of any building.” Mr. Barnes said
that that case was of no assistance here, because the words “any part of a building” formed part of
the definition in the Act of 1990 and were thus relevant to this case. On the view which I have taken
of the meaning of the expression “listed building” that argument no longer applies. But I would
prefer not to take Lord Diplock's observation out of its context. In any event I do not think that what
he said in that case can be taken to mean that, in the context of listed building consent, works which
will involve the removal of so much of the old building as to clear a site for redevelopment cannot be
held to amount to demolition works for the purposes of Part I of the Act of 1990, and in particular for
the purposes of section 8(2).
Other matters
[10] It should be noted that the view which I take of the meaning of the expression “listed building”
and of the distinction between works of “demolition” and works of “alteration” in this context is not
the same as that which has been expressed in Departmental Circular 8/87 and in a prior decision in
the Queen's Bench Division. In R v North Hertfordshire DC, ex p Sullivan,17 Comyn J was referred to
paragraph 66 of Department of the Environment Circular No. 23/77 (Historic Buildings and
Conservation Areas — Policy and Procedure) which was in these terms:
“It is often asked whether works which do not involve total demolition of a building should, nevertheless,
be regarded as ‘works for the demolition of a building.’ The Secretary of State cannot give an authoritative
interpretation of the law but draws attention to section 290(1) [of the Act of 1971] — in which building is
defined as including any part of a building but demolition of a part of a building should thus be regarded as
the demolition of a building for the purposes of sections 55 and 277A .”
[11] That case was concerned with the question whether an extension of a listed building which
involved the demolition of parts of the listed building constituted demolition within the meaning of
the Act of 1990 which required the proposal to be notified to various interested bodies by the local
planning authority. The judge held that the dominant word in the provisions about demolition,
alteration and extension was the word “demolition,” especially where, under the interpretation
section, demolition was deemed to refer not only to a building but also to part of a building. As was
observed in the comment on that decision, the problem raised by that case was how to find a
wording which would distinguish between fundamental demolitions and works which, although they
involved a partial demolition of a building, were relatively minor. The commentator added that one
easy solution would be to amend the law so that demolition of a building, in the context of listed
buildings, did not include the demolition of part of a building but only the complete demolition of a
building. It was recognised however that it might be considered that this would be too drastic, since
it would mean that works which might fundamentally change a listed building would come under less
stringent procedures if they fell short of complete demolition.
[12] On the approach which I favour to the meaning of these words no alteration of the Act of 1990
would be required. It will be sufficient to read the expression “listed building” in the context of Part I
of the Act as meaning a building or any part of a building which for the time being is included in the
16
17
[1983] 1 WLR 1445, HL, at p 1451A-B.
[1981] JPL 752
list. So demolition of a part only of what is in the list as a listed building will not constitute demolition
for the purposes of this Part of the Act unless the works which are to be carried out to the listed
building as a whole are so substantial as to amount to a clearing of the whole site for redevelopment.
[13] The advice which was given in Circular No. 23/77 has been carried one stage further in regard
to conservation areas, to which the provisions of the Planning (Listed Buildings and Conservation
Areas) Regulations 1990 apply, by a planning policy guidance note (P.P.G. 15) issued by the
Department of the Environment and the Department of Natural Heritage in September 1994,
paragraph 4.28 of which is in these terms:
“Section 336 of the principal Act states that a building includes ‘any part of a building.’ The demolition of
part of a building should therefore be regarded as falling within the scope of conservation area control.
What constitutes a demolition or demolition of part of a building must be a matter of fact and degree, to be
decided in the particular case and ultimately by the courts. Routine works of repair, maintenance or
replacement, including work involving such items as doors or windows, would not in the Secretary of State's
view normally constitute demolition. Likewise, the removal of internal features, whether replaced or not,
would not usually constitute a demolition and for the purposes of conservation area consent would not, in
any event, have a material impact on the building's appearance or affect the character or appearance of the
area.”
[14] It follows from what I have said that the advice in that paragraph will require to be
reconsidered. Subject to such exceptions or modifications as may have been prescribed by
regulations under section 74(3) of the Act of 1990, it will no longer be correct to say that, because of
the definition of “building” in the principal Act, the demolition of part of a building in a conservation
area should be regarded as falling within the scope of conservation area control. In the context of
section 74 of the Act of 1990, which requires to be read together with the legislation relating to listed
buildings in Part I of that Act, the reference to demolition of a building means the demolition of the
whole building. But advice can still be given to the effect that the question what constitutes the
demolition of the whole building is a question of fact and degree which will need to be decided on
the facts of each case.
[15] It was submitted for the compensating authority that the application for consent to remove
the chimney-breasts was part of a series of steps designed to secure the overall aim of gaining
consent to demolish the greater part of a listed building. This argument was presented under
reference to Furniss v Dawson,18 on the view that there was a premeditated scheme to achieve that
end. But I agree with Sir Ralph Gibson that the compensating authority cannot derive any assistance
from the principles established in Furniss v Dawson.19 As he put it, a claimant is entitled to make
applications for planning permission or for listed building consent at such time and in such sequence
as he chooses. Furthermore, there is no evidence here of a pre-ordained series of transactions.
Ownership of the building changed between the date of the original applications and the application
for consent for the removal of the chimney-breasts before the Lands Tribunal, as the member has
recorded,20 and it was common ground between counsel for the parties that there was no deliberate
scheme by the claimants involving the fragmenting of the applications so as to secure and maximise
compensation.
[16] Various criticisms were made of the reasoning by which the member reached his decision that
the removal of the chimney-breasts constituted an alteration rather than demolition of part of a
building. Millett LJ said that his reasoning could not be supported, as many of the considerations
which influenced his decision were irrelevant to the question which he had to decide.21 In my
opinion the force of these criticisms is removed by the approach which I have taken to the meaning
of the expression “listed building,” so I do not think that it is necessary to go over this ground again.
18
[1984] AC 474.
[1995] 1 EGLR 167, CA, at p 173.
20
[1994] 1 EGLR 214, LT, at p 217.
21
[1995] 1 EGLR 167, CA, at p 169.
19
Annex E.
Extract from R (Save Britain’s Heritage) v Secretary of State for Communities and
Local Government and Lancaster Council [2011] 2 CMLR 48
Lord Justice Sullivan
3
This is an appeal from the Order dated 7th May 2010 of HH Judge Pelling QC dismissing the
Appellant's claim for judicial review in which the relief sought included declarations that:
i) Demolition of buildings is capable of constituting a project falling within Annex II of the
Directive; and
ii) Paragraph 2(1)(a)-(d) of the Town and Country Planning (Demolition – Description of
Buildings) Direction 1995 (“the Direction”) is unlawful and should not be given effect.
…
8
The Direction is contained in Appendix A to Circular 10/95 : Planning Controls over Demolition.
It directs that:
“(1) Subject to sub-paragraph (2), the demolition of the following descriptions of building shall not be
taken, for the purposes of the Town and Country Planning Act 1990, to involve development of land:
(a)
any building which is a listed building as defined in section 1(5) of the Planning (Listed Buildings
and Conservation Areas) Act 1990;
(b)
any building in a conservation area;
(c)
any building which is a scheduled monument as defined in section 1(11) of the Ancient Monuments
and Archaeological Areas Act 1979;
(d)
subject to sub-paragraph (3), any building other than a dwelling-house or a building adjoining a
dwelling-house;
(e)
any building the cubic content of which, measured externally, does not exceed 50 cubic metres;
(f)
the whole or any part of any gate, fence, wall or other means of enclosure.
(2) The descriptions of building in sub-paragraph (1) do not include the whole or any part of any gate, fence
or other means of enclosure in a conservation area.”
9
Thus, the practical effect of the Direction is to exclude the demolition of any listed building,
any building in a conservation area, any scheduled monument, and any building that is neither a
dwelling nor adjoining a dwelling from the application of the Directive. There are, of course, other
controls over the demolition of listed buildings and ancient monuments, and demolition of buildings
within conservation areas, but they do not engage the Directive.
…
27 For these reasons, I would allow the appeal and grant the two declarations sought by the
Appellant (para 3 above). I see no need for a reference to the CJEU.
Lord Justice Toulson and Sir Andrew Morritt (the Chancellor) agreed.
Annex F.
Suggested amendments to the 1991 Measure
1.
Section 15 (consultation with diocesan advisory committees) shall be replaced with the
following section:
“15. Notification of faculties
(1) Subject to subsection (2), before making a final determination in any cause of
faculty or issuing a permanent injunction under section 13(4) above or making a
restoration order under section 13(5) above, the chancellor of a diocese or, as the case
may be, the archdeacon shall seek the advice of
(2)
(a)
the advisory committee, and
(b)
such other persons or organisations as may be prescribed in rules made
under section 26.
Subsection (1) shall not apply where
(a)
the action proposed relates exclusively to exhumation or the reservation of
a grave space; or
(b)
the chancellor or, as the case may be, the archdeacon, is satisfied that the
matter is sufficiently urgent to justify the grant of a faculty or issue of an
injunction without complying with the requirements of those subsections.
(3) In every diocese the secretary to the advisory committee shall compile and
maintain a register of all petitions for a faculty referred to the committee or to other
persons or organisations for advice under this section, and shall ensure that the
register is available for inspection by the public by prior appointment at such place in
the diocese as the bishop of the diocese may designate for the purposes of this
subsection.”
2.
Section 17 (faculties for demolition of churches) shall be replaced with the following
section:
“17. Faculties for demolition of churches
(1) A court shall not entertain a petition for a faculty for the demolition of a church
unless:
(a) it is satisfied that another church will be erected on the site or curtilage of
the church in question, to take the place of that church; and
(b) the person bringing proceedings for the faculty has obtained the written
consent of the bishop of the diocese.
(2) Where a faculty is granted for the demolition of a church that is a listed building,
the registrar shall give notice in writing to English Heritage, and thereafter either
(a)
for a period of at least one month following the grant of such consent, and
before the commencement of the works, reasonable access to the building
(b)
has been made available to officers of English Heritage for the purpose of
recording it; or
English Heritage, or an officer of theirs with authority to act on their behalf
for the purposes of this section, have stated in writing that they have
completed their recording of the building or that they do not wish to
record it.”
3.
Section 18 (emergency demolition of churches) shall be replaced with the following
section:
“18. Emergency works
(1) Without prejudice to the powers exercisable under any rule of law by diocesan
chancellors, where the chancellor of a diocese is satisfied—
(a)
that works for the demolition, alteration or repair of a church in the
diocese are immediately necessary in the interests of safety or health or for
the preservation of the church;
(b)
that it is not practicable to secure safety or health or, as the case may be,
the preservation of the building by works of repair or works for affording
temporary support or shelter;
(c)
that the works to be carried out are limited to the minimum measures
immediately necessary; and
(d)
having regard to the urgency of the matter, that there is insufficient time
for a faculty to be obtained in respect of those works; and
he may by an instrument under his hand authorise the carrying out of the works
without a faculty.
(2)
An instrument under subsection (1) above—
(a)
may require the person to whom it is issued to consult the diocesan
advisory committee or such other person or organisation as may be
specified, in so far as is practicable in all the circumstances, and to have
due regard to any advice that that committee, person or organisation shall
supply; and
(b)
may require the person to whom it is issued (subject to his obtaining any
necessary faculty) to carry out such further works as may be specified in
the instrument.
(3) Where the chancellor of a diocese issues an instrument under subsection (1)
above he shall require the registrar to send a copy of the instrument to any
committee, person or organisation as may specified in the instrument by virtue of
subsection (2)(a).”
4.
The words “public worship” shall be replaced by “regular public worship”:
(a)
in section 6 of the Inspection of Churches Measure 1955, in the definition of
‘church’, on each occasion that they occur, and in the definition of ‘ruin’;
5.
(b)
in section 15 of the Faculty Jurisdiction Measure 1964, in the definition of
‘church’; and
(c)
in this Measure:
(a)
(i)
in section 11(2) (general provisions as to faculty jurisdiction);
(ii)
in section 19 (meaning of “church”); and
(iii)
in section 31(2)(b) and (c) (interpretation).
In section 31 (interpretation), after the definition of ‘conservation area’ shall be
inserted:
“‘Church Buildings Council’ means the body so named established under the
Dioceses, Pastoral and Mission Measure 2007.”
(b)
The words “Council for the Care of Churches” shall be replaced by “Church
Buildings Council”:
(i)
in section 1(7) (diocesan advisory committees);
(ii)
in section 4(3) (duties of churchwardens);
(iii)
in rule 25(1) (rule committee); and
(iv)
in paragraph 3 of Schedule 1 (provisions to be included in diocesan
advisory committee constitutions).
Annex G.
Suggested amendments to the 2000 Rules
1.
Rule 2 (interpretation) shall be amended as follows.
(a)
At the appropriate places in rule 2(1) shall be inserted:
“local planning authority” has the same meaning as in the Planning (Listed
Buildings and Conservation Areas) Act 1990;”
“scheduled monument” has the same meaning as in the Ancient
Monuments and Archaeological Areas Act 1979”.
(b)
at the end of the definition of “statement of significance”, there shall be added:
“, with particular reference to those features which are likely to be affected by
the works or other proposals in question”.
(c)
After rule 2(1) shall be inserted:
“(1A) Works or other proposals fall within this paragraph if:
(a)
they involve the demolition of a church that is a listed building or a
scheduled monument, or
(b)
they involve the alteration to or extension of a listed church or
monument to such an extent as is likely to affect its character as a
building of special architectural or historic interest, or
(c)
they are likely to affect the archaeological importance of a church or
archaeological remains existing within a church or its curtilage, or
(d)
they are within the site of a scheduled monument, or
(e)
they involve the demolition of a church that is in a conservation area.
(1B) For the purpose of rule 2(1A), alteration of a church includes:
(a)
the removal of a significant part of the structure of the interior,
including principal internal elements such as a staircase, gallery,
load-bearing wall, floor structure or roof structure
(b)
the removal of a major internal fixtures such as fixed pews, a rood screen or
an organ;
(c)
the addition of any significant new element such as the creation of new
spaces through subdivision; and
(d)
in relation to a listed church of Grade I or Grade II*, the introduction
of different materials or features, the covering over or removing of
parts of the structure, the changing of the composition of existing
elements such as stained glass windows, the sub-division, adding to
or removing elements of the fabric, and piercing through historic
fabric.”
2.
Rule 3 (seeking advisory committee advice) shall be amended as follows:
(a)
For rule 3(3) shall be substituted:
“(3) Where the works or other proposals fall within rule 2(1A)(a), the intending
applicant should provide the advisory committee (in addition to the particulars
required by paragraph (2) of this rule) with a Statement of Significance and a
Statement of Needs.”
(b)
3.
For rule 3(7), after the words “the advisory committee shall” shall be substituted
“include such a recommendation in any case where such consultation should
have taken place under rule 3A”.
After rule 3 shall be inserted:
“3A. Requirement for consultation
(1) Where the works or other proposals for which a faculty is to be sought fall within
rule 2(1A), consultation should take place in accordance with the provisions of Rule 3B
at the same time as advice is being sought from the advisory committee.
(2) An intending applicant for a faculty consulting any body in accordance with Rule
3B should submit:
(a)
particulars of the works or other proposals, including designs, plans or
other documents (including photographs); and
(b)
a statement of significance and a statement of needs.
(3) The particulars given under rule 3A(2) should be sufficiently clear for a
comparison to be made between the church in its existing state and in its future state
if the works were permitted to be carried out, so as to enable an assessment to be
made of the likely impact of the works on the listed church.
(4) Such a consultation should be accompanied by a letter notifying the body in
question that any response to the consultation will be taken into account provided
that it is received within 28 days from the date of the letter.
(5) An intending applicant for a faculty should inform the secretary of the advisory
committee of:
(a)
which body or bodies has been consulted in accordance with rule 3B, and
(b)
the date when the 28 day period referred to in paragraph 5 is due to expire
in relation to each such body.
(6) On receipt of a response from any of the bodies consulted, the intending
applicant should provide a copy of the response to the secretary of the advisory
committee.
(7) The advisory committee is not obliged to await a response which is not received
within the relevant 28-day period before reaching a decision and issuing a certificate in
Form No. 1 in Appendix C.
3B. Bodies to be consulted
(1) English Heritage shall be consulted in respect of works or other proposals
consisting of or including:
(a)
the demolition of a listed church;
(b)
any alteration or extension to a listed church;
(c)
any works affecting the setting of a listed church of Grade I or Grade II*.
(d)
any works or other proposals within the site of a scheduled monument;
(e)
any works or proposals which are likely to affect the archaeological
importance of a church of any archaeological remains existing within the
church or its curtilage.
(2) Consultation shall take place in respect of any works or other proposals within
rule 2(1A)(a) or (b) with the appropriate national amenity society or societies, having
regard to:
(a)
the age and nature of the church in question, and
(b)
the nature and extent of the works or proposals and their likely effect on
the church or its setting.
(3) Consultation with the local planning authority should take place in respect of any
works or proposals within rule 2(1A)(a), (b) or (e).”
4.
In rule 7(1) (allocation to archdeacon), for the words “rule 13(1)” shall be substituted
“rule 2(1A)”.
5.
Rule 13 (requirements as to notice of petition) shall be amended as follows:
(a)
for rule 13(3) shall be substituted:
“(3) Subject to the generality of rule 13(1), where it appears to the chancellor
on preliminary consideration of the petition that the works or other proposals
for which a faculty is sought fall within rule 2(1A), he shall direct that English
Heritage, the local planning authority and such of the national amenity societies
as appears to be likely to have an interest in the church or the works shall be
specially notified, in accordance with the criteria in rule 3B.
(3A) Paragraph (3) of this rule shall not apply in relation to a body specified in
that paragraph where it appears to the chancellor from the available information
that that body has previously been consulted about those works and has
indicated that it has no objection or comment to make.”
(b)
In rule 13(4), for paragraphs (i) and (ii) shall be substituted:
“(i)
rule 2(1A)(a) (demolition of a listed church);
(ii)
rule 2(1A)(b) which affects a church listed grade I or grade II*, or the
exterior of a church listed grade II;
(iii)
rule 12A(e) (demolition of an unlisted church in a conservation area),”
6.
Appendix B shall be omitted.
7.
Form 1 in Appendix C to the 2000 Rules shall be replaced in accordance with the
Appendix to [these amending Rules].
APPENDIX
FORM NO 1.
DIOCESAN ADVISORY COMMITTEE CERTIFICATE
(Rule 3)
In the Diocese of:
Parish of:
Church of:
(a) The Church is listed under the Planning (Listed Buildings and Conservation Areas) Act
1990. The listing is I/II*/II (or other category, if appropriate) / not known.
(b) The Church is a scheduled monument, or the churchyard includes the site a scheduled
monument.
(c)
The Church is in a conservation area
(Delete if not applicable.)
I CERTIFY that at a meeting of the Diocesan Advisory Committee held on
20
1.
The following works or other proposals (“the works”) were considered:
2.
The Committee considered that the works fall within the scope of rule 2(1A) because:
(a)
they involve the demolition of a listed church, or
(b)
they involve alteration to or extension of a listed church or monument to such an
extent as is likely to affect its character as a building of special architectural or
historic interest, or
(c)
they are likely to affect the archaeological importance of a church or
archaeological remains existing within a church or its curtilage, or
(d)
they are within the site of a scheduled monument, or
(e)
they involve the demolition of an unlisted church in a conservation area.
(Delete if not applicable)
3A. The Committee decided to RECOMMEND the above works/other proposals (SUBJECT
to the following provisos:)
(1)
(2)
3B. The Committee has NO OBJECTION to the above works/other proposals (SUBJECT to
the following provisos:)
(1)
(2)
3C. The Committee does NOT RECOMMEND the above works/other proposals for approval
for the following principal reasons:
(1)
(2)
You are nevertheless entitled to petition for a faculty, if you so wish, notwithstanding the
Committee's decision.
(Delete 3A or 3B or 3C as appropriate)
4.
The Committee recommends that the intending applicants consult such of the bodies
or person as is indicated below: (a) English Heritage
(b) the Local Planning Authority
(c) the following National Amenity Societies:
(d) the Church Buildings Council
(e) the following body or person:
The reason for this recommendation is as follows:
Signed
Secretary of the Diocesan Advisory Committee
Date
PLEASE NOTE:
(1) A Certificate under paragraph 3A or 3B does NOT give you permission to proceed with
your proposals, unless and until a faculty is granted by the Chancellor (or by the Archdeacon
in respect of matters within Appendix AA of the Faculty Jurisdiction Rules 2000).
(2)
This certificate is valid for 12 months from the date stated above.