Barratt & Anor v Ashford Borough Council

This appeal is from a preliminary issue tried last year in the Canterbury County Court by Mr Recorder Gerlis. The issue was whether a house in the Kent countryside bought by the Appellants in 2006 was, as at 30 June 2008, “a listed building.” That was the date when the respondent Ashford Borough Council (the Council), as local planning authority, applied for an interim injunction to stop unauthorised works to the house. The Recorder held that the house was listed. He granted permission to appeal.

The Appellants’ case is that their detached 18^th century farmworker’s cottage called Hayes Cottage, Ebony Road, Stone-cum-Ebony, Tenterden was not at the material time “a listed building” within the meaning of the Planning (Listed Buildings and Conservation) Act 1990 (the 1990 Act). They say that no building of that name and address ever appeared in the list compiled and approved on 9 August 1979 under Part IV of the Town and Country Planning Act 1971. The 1990 Act repealed the 1971 Act and replaced it with a substantially similar regime. According to the Appellants, discrepancies in the name, address and descriptive details in the listing rendered ineffective the official entry relied on by the Council for its enforcement measures.

The Council says that the Recorder was right because, notwithstanding the criticisms of the listing details, the house was sufficiently identified as “a listed building” on the material date. The Recorder’s conclusion was based on the correct construction of the 1990 Act and the list.

Chapter 1 of Part 1 of the 1990 Act contains the legislative framework for the listing of buildings of special architectural or historic interest :-

The expression “listed building” is defined in subs(5) as meaning

The function of the lists, which are certified and deposited documents open to public inspection under s2 of the 1990 Act, is that they provide local planning authorities and other interested persons with an authoritative source of information as to whether or not a particular building is listed for its special architectural or historic interest. The legislation does not lay down any particular form for the lists nor does it specify the details that the lists should include. It is for the court to interpret the legislation and the lists compiled under it by gathering their meaning and legal effect from their language and from their context. If it is possible to do so, the court opts for the interpretation that is most compatible with the statutory aims.

The practical significance of “listed building” status is in the statutory control of works affecting such buildings. Unless authorised under the 1990 Act, no person shall execute any works for the demolition of a listed building or for its alteration or extension in a manner which would affect its character as a building of special architectural or historic interest: see s7. Contravention of the restrictions is a criminal offence punishable by fine and/or, on indictment, a term of imprisonment not exceeding 2 years: see s9. There is a separate offence under s59 of intentionally causing damage to a listed building. The Appellants submit that the penal consequences of contraventions are reasons for a strict approach to interpretation.

The Appellants have no complaint about the Recorder’s main findings of fact in his ex tempore judgment of 12 March 2010. The essential facts were never in dispute. The grounds of appeal are that his ruling on the preliminary issue was wrong in law because he applied a misconceived method to interpretation.

The entry in the list relied on by the Council gave, as the name and address of the building, “High House Cottage, Corkscrew Lane, Stone-cum-Ebony.” High House Cottage was also noted in the Local Land Charges Register as the name of the building listed. It was not, however, the name of the house purchased by the Appellants on 19 June 2006. Nor was Corkscrew Lane the name of their road. The list did not explain the references included in the entry to “TQ92NW” and “13/422.” They were, as the Recorder explained, references to the Ordnance Survey sheet for the area and to an annotated section of the sheet. The Appellants contend that OS sheet and the annotated map were not part of the official list. The potential importance of the annotated map is that, as indicated by an arrow marked “422”, the building entered in the list is located in the same spot as the Appellants’ house. The list also contained a “verbal” description of a building- “Two storeys. Ground floor red brick. First floor tile hung. Tiled roof. Two casements”, which the Appellants say is a misdescription of their house.

On 22 April 2009 (i.e. after the proceedings began) the list was amended to delete the references to “High House Cottage” and to “Corkscrew Lane” and to substitute the name “Hayes Cottage.” The Appellants contend that the amendment can only be relied on for the future. The Council did not rely on the 2009 amendment in the preliminary issue or on this appeal, its case being that the Appellants’ house was effectively listed before the amendment and had been so since 1979.

Although the point has no impact on interpretation, the Recorder’s findings of fact show that the Council’s litigation stance on the listing came as no surprise to the Appellants. In May 2006 the Council received from the Appellants an application for planning permission for alterations to their house. The Council informed them that Application Form 4 was to be used when applying for listed building consent and needed to be filled in. When the Appellants re-applied in June 2006 using that form, permission was refused. Their appeal against the refusal was dismissed on 24 May 2007. The Council subsequently took these proceedings and obtained an interim injunction prohibiting them from carrying out works to their house without authorisation.

In the proceedings an order was made on 29 September 2009 for the determination of the preliminary issue:-

In holding that it was, the Recorder inserted in the court order the italicised words in brackets in order to make grammatical sense of his ruling. The wording of the preliminary issue reflected the Appellants’ pleaded defence that their house was not a “listed building.”

The Recorder heard oral evidence at trial from Ms Carol Ryan, a heritage protection adviser employed by English Heritage, the body responsible for the listing procedure in this area. She was also the field inspector who carried out the original inspection of the building. The Recorder found that Ms Ryan had no idea what the name of the building was and that she never gave it the name “High House Cottage” or any other name. The best she could do was to give a map reference and a marking on a section of the OS map by an arrow marked 13/422 and the verbal description quoted above. The name in the list was entered by the section of the Department of the Environment responsible for compiling and editing the list which was then forwarded to the Council as the local planning authority. The name “High House Cottage” entered on the list remained there for nearly 30 years, despite queries about the correctness of the name both of the building and the road raised by people living in High House Farm nearby.

The Recorder said that it was obvious that the list referred to a building: the question was whether the entry affected the Appellant’s house. Mr Peter Harrison QC appearing for the Appellants conceded at trial that the building indicated as “422” by an arrow on the annotated map 13/422 is the property Hayes Cottage owned by his clients. In those circumstances the Recorder concluded that what was listed in 1979 was the building located at map reference 13/422 in the position indicated by the arrow marked 422. It was the building that was intended to be listed: “…it just was not listed with the name Hayes Cottage.” In other words, the building described in the entry, which included the map references, fitted the Appellants’ house, even though its name and address were not correctly stated in that entry.

The Recorder rejected Mr Harrison’s submission that “if somebody gets the listing wrong, [that] there is no listing at all.” Mr Harrison’s argument that the name of the building in the list takes precedence over all other details, such as verbal description and map references, was based on some general observations of Lord Hope in a concurring opinion in the Scottish appeal in City of Edinburgh v. Secretary of State for Scotland[1997] 1 WLR 1447, a case on the then equivalent listed building legislation for Scotland. The question of interpretation in that case was on the scope of the listing of a group of buildings (Redford Barracks) designed by a particular architect (Mr Harry Measures) with reference to a specified period (1905-15). There was no dispute that a group of buildings was listed. The issue was whether the scope of the listing included a particular building (the riding school) that was not erected until a year or so following the end of the specified period.

At trial Mr Harrison contended that, on Lord Hope’s approach, which was neither expressly approved nor disapproved by the four other members of the Appellate Committee, the legislation proceeded on general assumptions that a name was sufficient to identify a listed building, that the name in the list took precedence over other listed details and that the list was the only document that the public needed to inspect for listed status.

He cited certain observations of Lord Hope in relation to a list that was drawn up in 6 columns, including separate columns for “Name of Building” (Column 2), “Description” (Column 3) and “References” (Column 1):-

The Recorder, to whom the passages were cited, concluded that this case was not at all like the City of Edinburgh case, which he distinguished as turning on an alleged ambiguity in the list compiled under Part IV of the Town and Country Planning (Scotland) Act 1972. The building was listed in the “Name of Building” column (Column 2) as “Redford Barracks (original only 1905-15).” The “Description” column (Column 3) referred to the work of Mr Harry Measures. That work included the design of a riding school, but doubt about its listing status arose from the fact that that part of the group of buildings was not actually completed until the end of1916. So it was argued by the applicant for planning permission that there was an inconsistency between the name and date of the building in Column 2 and the description of it in Column 3. The inconsistency gave rise to an ambiguity in the list that prevented it from being interpreted to include the riding school.

The House of Lords rejected the argument on inconsistency and ambiguity. It held unanimously that, on its true interpretation, the “Name of Building” column specifying the dates (1905-15) included buildings in the group that were part of the named architect’s original design of the barracks. Even though the riding school part of the group was not erected in the specified period, it was covered in the prior processes of planning, conception, and design in that period and in the realisation of the work of Harry Measures that, at least to an extent, took place in the stated period: see Lord Clyde at 1456 E-H. Lord Hope, by a somewhat different route described in his general observations, reached the same conclusion on the effect of the list: see 1454 E-G.

The Recorder said that in this list no problem of interpretation arose from an inconsistency or ambiguity. The question for the court was one of the identification of the listed building rather than one of resolving an ambiguity in the scope of the listing of a group of buildings. The origins of this dispute lay in the historic fact that the building listed was not identified by name by the original field inspector, who had no name for it and gave no name to it. The Appellants contended that the name and address of the building entered in the list by those who edited the entries was not the name and address of their house. The Recorder concluded that that fact was not fatal to the identification of the listed building. He concluded that the reference in the list to the annotated map and the arrow marked on that map were sufficient to identify the house as a listed building for the purposes of the 1990 Act.

In later discussion of the parties’ submissions on the appeal I will examine more closely the important matter of the ratio decidendi of the City of Edinburgh case as a decision of the highest court on a similar legislative regime. It was the only authority cited at trial and on the appeal; and it is the principal plank of the Appellants’ grounds of appeal.

In forceful submissions Mr Harrison argues that Hayes Cottage was not a listed building on 30 June 2008. The entry on the list was inapplicable to the Appellants’ house “in nearly every particular.”

The building was stated to be in Corkscrew Lane, but that was not and is not the name of their road. None of the wiggly lanes winding around this cliff-top shore-line of Roman Britain was called Corkscrew Lane. The correct name of the Appellants’ road was and is Ebony Road. Further, although their house has for very many years been called Hayes Cottage, that name was not in the list. The name in the list was “High House Cottage.” The Appellants’ case is simple: their house was not included in the list, as the name and address in the list were not the name and address of their house.

The added verbal description did not assist with identification, it was not completely accurate as a description of the Appellants’ house. The photographs showed that the house has 4 casement windows on the front elevation alone, not 2 casements as listed. The description made no mention at all of the distinctive architectural feature of the tiled, cat-slide roof at the back of the house. In all the circumstances it did not make sense of the entry for the Recorder to ignore its misleading aspects and then to conclude that, despite them, it was an effective listing of the differently named building known as Hayes Cottage, Ebony Road.

Mr Harrison criticises the whole approach taken by the Recorder. He says that the Recorder wrongly considered that he could set aside the wording in the official list by conducting at trial an inquiry into what had happened over 30 years ago and then by deploying the results of that inquiry to determine that a field inspector intended to list the Appellants’ house and had effectively done so. It was, he submits, contrary to the way in which the House of Lords, and Lord Hope in particular, interpreted the list in the City of Edinburgh case.

As a matter of statutory interpretation the 1990 Act provided that, to be effectively listed, a building must be included in the official list compiled under the Act. The listing must be notified to the owner or occupier of a building. The formal wording of the entry in an authoritative list was determinative of the listing. It was all that could be looked at by the public on inspection of the list. It was not lawful to use other material not in the list in order to bolster it, such as the oral evidence of the field visit by the inspector, or the OS maps that formed no part of the official list. Contemporaneous evidence from witnesses about their intentions at the time of the listing was irrelevant to interpretation of the list. The Recorder had wrongly dismissed the possibility that, on its face, the entry was so patently defective that it lacked any legal effect.

The map references, which the Recorder treated as crucial to his conclusion, carried no weight in the interpretation of the list. The OS sheet for the area and the annotated map did not form a physical part of the list. They were not certified as part of the list under the 1990 Act by or on behalf of the Secretary of State. There was nothing in the list that explained the reference to “13/422.” The only grid reference (TQ 92NW) was for a very wide area that covered many historic rural buildings.

In support of those submissions Mr Harrison rightly reminds the court of the significant legal consequences of listing for the owner of the building affected. The legislation makes criminal what would otherwise be lawful in the case of a non-listed building, such as demolishing, or intentionally damaging, the building, or carrying out works to it without authority. As the legislation imposes criminal penalties, the list on which the public have to rely as authoritative should be clear, certain and definitive. This entry was none of those things.

The precedent authority of the City of Edinburgh is binding and in point. The passages cited above from Lord Hope’s opinion show that, under the scheme of the legislation, the list alone can be inspected in order to identify a listed building. As the name of the building entered in it is all-important, it should alone be sufficient to identify it. Other details in the list, whether descriptive or referential, are subservient to the name.

In conclusion Mr Harrison says that the Recorder was wrong on the preliminary issue because, in reaching his conclusion, he ignored the words actually used in the list as the name, address and verbal description of the building. His ruling was based not on evidence. It was based on his speculation about the name of the roadand on a false premise that there was a listed building and that it could only refer to the building in the actual location of Hayes Cottage. His decision relied on evidential material that was neither included in the list nor accessible to the public; in particular, the oral evidence of Ms Ryan as to how she identified the building to be included in the list, and the unexplained references to maps physically separate from the official list. The finding of an intention to list the Appellants’ house could not possibly justify the conclusion that it was a listed building. The name of the building must actually be included in an official list, so that the public could rely on the face of it without further inquiry. If the name was not included, the building was not effectively listed.

In the City of Edinburgh case, in which the list was compiled by tabulation of details in no less than 6 columns, Lord Clyde said:-

This is the principal question of interpretation on this appeal: what degree of clarity and precision is sufficient to satisfy the requirements of the legislation?

Although the 1990 Act does not stipulate a form of list or the details to be entered, it implicitly assumes, as Lord Hope observed, that public inspection will be of a list and that in it buildings of special interest will be identified. Although the common way of identifying a building is by its name and address, that is not the only way. Nothing in the 1990 Act expressly or impliedly precludes the list from using other sorts of identifying detail, such as verbal descriptions, map references, post-codes, explanatory notes, or even photographs. That sort of detail may be included in addition to a name or address and, in my judgment, may, in appropriate circumstances, suffice to identify a building, even in the absence of the correct name and address.

In general, the list should contain as much reliable relevant detail as is reasonably available when compiling the list, even though not specifically required by the 1990 Act. In general, the correct name and address of the building should be ascertained and put in the list. Additional detail advances the purposes of the legislation by enhancing the clarity and precision of the list and by reducing the risk of costly disputes ending up in the Court of Appeal or the Supreme Court. In some cases, depending on the particular circumstances, additional details may identify, for the purposes of the Act, a building that has not been clearly and precisely identified by its correct name and address.

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? Neither the provisions of the 1990 Act nor the well-known principles governing the interpretation of documents expressly or impliedly preclude the court from reading the entirety of the entry. Quite the contrary: 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 whole of the entry in order to determine the meaning it would have for the reasonable person inspecting the list.

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.

The decision in City of Edinburgh is one in which it was common ground that a group of named buildings of a named architect was specifically mentioned in the list. The ratio turned on the particular problem in the interpretation of the list: i.e. whether the former riding school building was included in the group listed under the name of “Redford Barracks….(original buildings of 1909-15 only).” The riding school was mentioned in the “Description” column. The potential difficulty in holding that it was listed was that the riding school was not erected until after the end of the period 1905-15 specified in the “Name of Building” column. The House held that, when the list was read as a whole and in accordance with a construction that made sense, the two columns were consistent. The House interpreted the list as covering the riding school, which was the work of the same architect in the specified period, though not actually erected within that period: see page1456 G-H.

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.

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. The name of a building in a list compiled 30 years ago may not stay the same and be the same as the name under which the building later changes ownership. It is obviously good administration to update the list entries from time to time to reflect change, but an effective listing would not cease to have effect simply because the owners changed the name of the building, or because the local administrative or highway authority decided to adopt a new name for a road or a place.

As Mr Mynors pointed out in his written submissions at trial, the vicinity of this building has not always been known by the place-name of Stone-cum-Ebony appearing in the list. Sometimes it is simply called Stone. That could cause some confusion. There are two other Kent villages also called Stone, though they are on the other side of the county. This area of ancient settlements, which have accumulated a variety of attractive and quaint place-names over the centuries, is still also known to some as Stone-in-Oxney, a remnant of the time when Oxney really was a coastal island used for cattle grazing. For many years the area passed under an upmarket name of Stone-juxta-Ebony. The valid general point made by Mr Mynors about multiple place-names, which are by no means uncommon in rural England, is that it would be contrary to good sense for the efficacy of the 1990 Act or of a listing under it to depend on whether a unique “correct” name, whether of a building, a road or a place, appeared in the list at the material date.

Turning to consider the Appellants’ specific legal submissions, they have not persuaded me that the Recorder’s ruling on the preliminary issue was wrong. I would dismiss the appeal on two main grounds.

First, as already explained, the basic framework of the 1990 Act is the compilation of an authoritative and publicly accessible list of buildings of special architectural or historic interest. The essential point is that it should be reasonably possible for the public to learn from an inspection of the list whether a particular building is listed or not. That is a matter of identification of the building from all the information available on an inspection of the list. Listing the building by the correct name should be the general practice, but it is not a statutory requirement that the listing is only effective if entered under a unique correct name that should always have precedence over a verbal description, or over a map reference to a geographical location, or over some other intelligible means of identification employed.

The short answer to Mr Harrison’s principal submission on the 1990 Act is that its legislative regime requires compilation of an official list of buildings, not of an official list of names. Buildings have, quite apart from their names, a real physical existence and an actual geographical location. True, they are usually identified by a name, but that is not mandatory in the list compiled under the 1990 Act. Depending on the circumstances of the list, a building may be identifiable by a combination of details referred to in the list and therefore effectively listed, even though not listed correctly by name.

Secondly, the Council is entitled, as the Recorder held, to rely on the map references in the list for the purpose of construing the list and identifying which building is listed. The inaccurate names in the list referring to High House Cottage, instead of Hayes Cottage, and to Corkscrew Lane instead of Ebony Road, do not render the listing ineffective if, read as a whole, the entry correctly identifies the location of an actual building. A name in the list is no more the only way to identify a building than a name of a person is the only way to establish personal identity. The significance and effect of a map reference in the entry is not excluded, overridden or cancelled by the entry of the name of a building or the incorrect name of a building.

The entry must be read and interpreted by reference to all of its interconnected parts. Exclusive reliance on a correct name or address for a building would demand a degree of clarity and precision that does not reflect real life. The map references TQ 92 NW and 13/422 are included in the entry for a reason. Their obvious purpose is to identify a listed building by its location, whatever name it is given in the entry. Although the sheet and the annotated map are not reproduced in, or physically attached to, the list, they are incorporated into it by the references contained in the list. It is trite law that the contents of a document may be incorporated into another document in this cross-referential way. The maps referred to are publicly available for inspection. When read together with the rest of the entry and then interpreted as a whole, Item 422 pinpoints the exact location of the building bought by the Appellants as Hayes Cottage, Ebony Road. The annotated map Item 422 does not refer to any other building in the vicinity. That has been conceded by the Appellants.

I would add that there is no substance in the point taken by Mr Harrison on the verbal misdescription of the Appellants’ house, first because, as explained, the building is identified on the annotated map, as incorporated by reference in the list, and, secondly, because, in any case, the verbal description, read as a whole, fits the Appellants’ house. In my view, the Recorder was entitled to accept the evidence of the field inspector that the reference to 2 casements in the verbal description was to the number of bays in which the windows are situated rather than to the number of windows themselves on the front elevation.

Finally, I return to a point that does not affect the interpretation of the list, but is worth noting as part of the perspective of the litigation scene. On the Recorder’s findings, the misnomer of the building and of the road in the list did not mislead the Appellants into believing that their house was unaffected by the 1990 Act. The listing under the name High House Cottage was disclosed on the normal Local Land Charges search responses prior to purchase and the Council made its view of the listing position regarding the Appellants’ house known to them when they first applied for planning permission in 2006.

I would dismiss the appeal and affirm the ruling of the Recorder. The list complied with the requirements of the 1990 Act. On the true construction of the entire entry invoked by the Council, the Appellants’ house called Hayes Cottage, Ebony Road, Stone-cum-Ebony was a listed building at the material date.

I agree.

I also agree.