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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Customs and Excise v Tinsley [2005] EWHC 1508 (Ch) (10 June 2005) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2005/1508.html Cite as: [2005] EWHC 1508 (Ch) |
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CHANCERY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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HER MAJESTY'S COMMISSIONERS OF CUSTOMS AND EXCISE |
Claimant |
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- and - |
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TINSLEY |
Defendant |
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MR TINSLEY did not appear and was not represented
Hearing date: 10 June 2005
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Crown Copyright ©
Mr Justice Laddie :
"It is common ground that Narborough Hall is a protected building. In 1997 certain work was undertaken which included the works which are the subject of this appeal and which were the construction of a terrace on four levels. This terrace came right up to and joined the house itself. We were shown a number of photographs of the terrace in its completed form. The first level, which is physically connected to the house, can be accessed directly from the house and, in the photographs shown to us, a table and chairs had been placed near a door out of the house. This first level is of York stone with a brick edging and shallow steps leading from it to the second level which is of a similar construction and leads to the next level which is partly constructed of gravel with the same brick edge and a large central bed seeming to contain shrubs. This level also has steps which lead to the fourth level which is grass-covered. The cascade of levels has its highest point by the house and its lowest point at the grass-covered area."
"The supply, in the course of an approved alteration of a protected building, of any services other than the services of an architect, surveyor or any person acting as a consultant or in a supervisory capacity."
"A 'protected building' means a building which is designed to remain as or become a dwelling or number of dwellings and which in either case is:
(a) a listed building within the meaning of:
(i) the Planning (Listed Buildings and Conservation Areas) Act 1990."
"A building is designed to remain as or become a dwelling or number of dwellings where in relation to each dwelling the following conditions are satisfied:
(a) the dwelling consists of self-contained living accommodation;
(b) there is no provision for direct internal access from the dwelling to any other dwelling or part of a dwelling;
(c) the separate use or disposal of the dwelling is not prohibited by the terms of any covenant, statutory planning consent or similar provision and includes a garage (occupied together with a dwelling), either constructed at the same time as the building or where the building has been substantially reconstructed at the same time as that reconstruction."
"In this Act 'listed building' means a building which is for the time being included in a list compiled or approved by the Secretary of State under this section; and for the purposes of this Act:
(b) any object or structure within the curtilage of the building which, although not fixed to the building, forms part of the land and has done so since before 1 July 1948 shall be treated as part of the building."
"3. In the present case the approved alterations comprised alterations, not to the main house, which is a listed building, but to an adjacent outbuilding within the curtilage of the main building. The outbuilding is five yards away from the main building. The two buildings are not linked structurally, although they are linked by a substantial stone wall. Thus, and this is accepted on all sides, although the outbuilding is a separate building, for listed building purposes it is to be treated as part of the listed building.
4. The works in dispute comprise conversion of the outbuilding into games and changing facilities and the construction of an adjoining indoor swimming pool."
"The outbuilding (sometimes referred to in the course of the appeal as a barn) was built of sandstone at the same time as the house. It has over the years been put to a variety of uses. Initially it was a stable, carriage shed and tack room; latterly it had been used as a garage and laundry and to store a deep freeze.
"54. Put compendiously, therefore, the question now arising is whether this supply of services was 'in the course of an approved alteration of a building which is designed to remain as or become a number of dwellings and which is a listed building'.
55. There is no dispute that the works constitute an approved alteration of a building. The critical question, however, is which building for the purpose of item 2 was being altered: was it the house or was it the outbuilding? If, as the taxpayers contend and the majority of the Court of Appeal held, it was the house, there can be no doubt that it was to remain as a single dwelling and was a listed building. If, however, it was the outbuilding, there can equally be no doubt that it was neither to remain as nor to become a dwelling and nor, indeed, was it a listed building.
61. If, indeed, the alteration carried out in this case, although 'in a practical sense to the outbuilding', is 'more naturally' to be considered an alteration to the house, then clearly it is alteration of a protected building and so attracts zero rating. To my mind, however, there can be no escaping the plain fact that the actual building altered here was the outbuilding and not the house. True it is that the requirement for these works to be authorised rested upon the fact that, under the extended definition of 'listed building' in section 1(5) of the 1990 Act, a listed building was being altered. That, however, appears to me an insufficient basis for ignoring the simple physical reality, namely that here it was the outbuilding itself which was being altered. It is not to the actual work of alteration that item 2 is directed. Either the building which is itself being altered is a protected building as defined or it is not. Here it is not."