Thursday, 27 January 2011

Misdescription of a listed building

An interesting little dispute over the listing of a house in Kent has reached the Court of Appeal, who gave judgment on 25 January. This was the case of Barratt v. Ashford BC [2011] EWCA Civ 27. Due to certain inaccuracies in the way in which a house was recorded on the statutory list of buildings of special architectural or historic interest, the Appellants sought to claim that their property was not in fact listed, so that they did not require Listed Building Consent for alterations they had carried out to the property. This claim failed in the County Court, and the appeal was unanimously dismissed by the Court of Appeal.

The name or address of the listed building was recorded on the statutory list as “High House Cottage, Corkscrew Lane”. There were several problems with this description. The name of the house had not at any time been “High House Cottage”; it has for many years been called “Hayes Cottage”. The building was stated to be in Corkscrew Lane, but there has never been a road of that name in the area. The correct name of the road has always been Ebony Road. The Appellants therefore claimed that their house was not included in the statutory list, because the name and address in the list was not the name and address of their house.

This problem was compounded by some apparent inaccuracies in the listing description ("Two storeys. Ground floor red brick. First floor tile hung. Tiled roof. Two casements"). Photographs show that the house has four casement windows on the front elevation alone, not two casements as stated in the listing description. The description made no mention at all of the distinctive architectural feature of the tiled, cat-slide roof at the back of the house. The Appellants relied on this as further evidence that the listing in the statutory list did not refer to their property.

On the other hand, the listing also contained references to "TQ92NW" and "13/422." These were references to the Ordnance Survey sheet for the area and to an annotated section of that sheet. The Appellants complained that these references were not explained in the listing itself and contended that they were not part of the official list. However, these references in the statutory list were clearly intend to refer to an annotated map on which the property was indicated by an arrow marked "422", and this is clearly the building referred to in the entry on the list, which the map shows is located in the same spot as the Appellants' house.

In the County Court, the O.S. map reference was the decisive factor which satisfied the Court that the entry in the statutory list was intended to refer to the Appellants’ property at Hayes Cottage, Ebony Lane (notwithstanding the anomalous verbal references and description) and that this property was and is duly included in the statutory list of buildings of special architectural or historic interest.

The Court of Appeal upheld the judgment at first instance. 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 may, in appropriate circumstances, suffice to identify a building, even in the absence of the correct name and address.

In interpreting the statutory list, one should read the entirety of the entry in order to understand the ordinary and natural meaning of a document by reading it as a whole in the setting of its relevant surrounding circumstances. Sensible allowances can and should be made 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.

The Court of Appeal held that the local planning authority was entitled 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, did not render the listing ineffective if, read as a whole, the entry correctly identified the location of an actual building. A name in the list is not the only way to identify a building, any more that the 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 on the statutory list 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 were 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.

Furthermore, there was no substance in the point regarding the verbal misdescription of the Appellants' house, first because 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.

One final point which sank the Appellants’ case was that, on the evidence, the misnomer of the building and of the road in the list did not in practice mislead the Appellants into believing that their house was unaffected by the Listed Buildings Act. The listing (albeit under the name “High House Cottage”) was disclosed in the Council’s responses to the normal Local Land Charges search prior to the Appellant’s purchase of the property, and when the Appellants applied for planning permission to extend the property in 2006, the Council made known to the Appellants its view as to the listed status of their house. Thus they were never at any stage ‘in the dark’ as to the possibility that the house might be (and was in fact) listed.


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