When do construction works in a conservation area comprise demolition?

08 April 2021

Jean-Francois Clin v Walter Lilly & Co. Ltd. [2021] EWHC Civ 136

This article was first published on LexisPSL on 12 March 2021

In this claim, and in the context of a contractual construction dispute, the Court of Appeal considered the approach to be taken in determining whether construction works are to be treated as amounting to demolition for the purposes of s.74 of the Planning (Listed Building and Conservation Areas) Act 1990 and thereby require conservation area consent. 

Mr Clin wished to convert two adjacent residential terraced properties in a conservation area in Kensington & Chelsea into a single dwelling and contracted with Walter Lilly to undertake the works. The works included the demolition of the internal walls and floors in their entirety, extensive demolition of the rear elevations and the removal of the chimney breasts and roofs. The works commenced in March 2013 but were suspended in August 2013, after the local planning authority said that conservation area consent was required but had not been obtained. The works started again in August 2014 after the relevant consents had been obtained and a dispute arose between Mr Clin and Walter Lilly as to where the contractual responsibility fell for the year’s delay.

In April 2019, Walter Lilly obtained a declaration from the Court that the works amounted to demolition and that (1) Mr Clin had breached his implied contractual obligation to use due diligence to obtain the necessary conservation area consent; and (2) Walter Lilly was entitled to an extension of time for completing the works and did not owe Mr Clin any liquated damages for the delay.  Crucial to those findings was that the works comprised demolition which required conservation area consent.

On appeal, Mr Clin argued that the Judge had failed to take into account the effect the works would have on the character and appearance of the conservation area in determining whether those works comprised demolition as required by s.72 and s.74 read together.

The Court of Appeal applied the conventional approach to statutory interpretation most recently restated in Zuberi v Lexlaw Ltd [2021] EWCA Civ 6 at [30] and upheld the first instance Judge’s conclusion that the works comprised demolition, for which conservation area consent was required, for two reasons. First, on the proper construction of s.72 and s.74 of the Planning (Listed Building and Conservation Areas) Act 1990 in deciding whether works comprise demolition the local planning authority is not required to carry out a qualitative exercise by reference to considerations of character and appearance of the conservation area in question [71]. In doing so it accepted that those considerations were relevant to whether conservation area consent should be granted. Secondly, the decision in Shimizu (UK) Limited v Westminster City Council [1997] 1 WLR 168, which was concerned with whether certain works to a listed building comprised demolition, confirms that the question of whether or not demolition of a building is involved is a question of fact and degree to be assessed on a quantitative basis and applies to the conservation area regime in Part II of the Planning (Listed Building and Conservation Areas) Act 1990 just as it does to the listed building regime in Part I of the Act [76]. However, the Court of Appeal questioned (but left open) whether Lord Hope’s decision in Shimizu, that the definition of a “building” excluded any “part of a building” for the purposes of the listed building regime, applied to an unlisted building in a conservation area.

This Case Report was produced by John Litton QC.

 

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