Ipsofactoj.com: International Cases [2005] Part 2 Case 1 [HL]


HOUSE OF LORDS

Coram

Commissioners of Customs

and Excise

- vs -

Zielinski Baker & Partners Ltd

LORD NICHOLLS OF BIRKENHEAD

LORD HOFFMANN

LORD HOPE OF CRAIGHEAD

LORD WALKER OF GESTINGTHORPE

LORD BROWN OF EATON-UNDER-HEYWOOD

26 FEBRUARY 2004


Judgment

Lord Nicholls of Birkenhead

My Lords,

  1. I have the misfortune to have reached a different conclusion from your Lordships. So I will set out my own views as shortly as possible. I agree that if the relevant statutory provisions are read literally the commissioners' case is unanswerable. Among the supplies zero-rated by the Value Added Tax Act 1994 as amended is the supply of services in the course of an approved alteration of a protected building. A 'protected building' means (a) 'a building' which (b) is 'designed to remain as or become a dwelling or number of dwellings' and which, additionally, (c) is 'a listed building' within the meaning of the Planning (Listed Buildings and Conservation Areas) Act 1990: see item 2 and note (1) in Group 6 in Schedule 8 to the 1994 Act. To satisfy condition (b), as I have labelled it, each dwelling must consist of 'self-contained living accommodation' and meet the other conditions set out in note (2).

  2. Section 1 of the Planning (Listed Buildings and Conservation Areas) Act 1990 provides that a listed building is a building included in a list compiled or maintained by the Secretary of State and that '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 1st 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 5 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 comprised conversion of the outbuilding into games and changing facilities and the construction of an adjoining indoor swimming pool. Thus the alterations satisfied condition (c), as I have labelled it. But if the statutory provisions in the 1994 Act are read literally, the alterations did not satisfy condition (b). The outbuilding was not designed to become a dwelling.

  5. The difficulty I have with this interpretation of the legislation is that it produces startling results which make no sense. If the games room and the indoor swimming pool were installed on the ground floor of the main house the works would be zero-rated. But, so it is said, there is a world of difference if the games room and the indoor swimming pool are installed in a separate existing building a few feet away. It makes a world of difference even though for listed building purposes the outbuilding is treated as part of the main house.

  6. The matter does not rest there. Perhaps even more oddly, if additional bedroom or living accommodation were added to the main building that work would be zero-rated. But not so, according to the commissioners' argument, if an adjacent barn existing before 1st July 1948 were converted in the same way. Even if the enlarged living accommodation were self-contained by being used exclusively as one unit of living accommodation with the main house, that would not be zero-rated. It would be outside the zero-rating exception because the accommodation would be split between two buildings.

  7. No one has been able to suggest a reason why these differences should matter. The social purpose of Group 6 in Schedule 8 to the 1994 Act was to alleviate the financial burden on the owners of listed buildings. This alleviation is confined to alterations, which in practice means improvements, as distinct from repairs or maintenance. The introduction of condition (b), as I have labelled it, added the 'separate dwelling' requirement in 1989. But no one has been able to put forward any suggestion why it should matter if the alterations carried out to improve the dwelling house amenities are made to an existing outbuilding as distinct from the main building itself.

  8. I decline to attribute to Parliament such a strange intention as is involved in the commissioners' case. A meaningful, purposeful interpretation is to be preferred. I agree with the approach of the Birmingham Value Added Tax tribunal. The key lies in recognising that the reference to 'a building' in the singular in the definition of protected building in note 1 ('"protected building" means a building ....') includes the plural 'buildings' where appropriate. If the accommodation comprises self-contained living accommodation it matters not that, structurally, part of it is located in one building and part in another, so long as both buildings fall within the statutory definition of a listed building. I would dismiss this appeal.

    Lord Hoffmann

    My Lords,

  9. I gratefully adopt the recital of the facts of this case in the speech to be delivered by my noble and learned friend Lord Walker of Gestingthorpe. It raises a point of statutory construction on which I must confess that I cannot feel the slightest doubt. To qualify for zero rating under Group 6, item 2 of Schedule 8 to the Value Added Tax Act 1994, the outbuilding to which alterations were made must have been a "protected building". Leaving aside immaterial matter, note (1) defines a protected building by reference to two propositions, both of which must be true.

    • First, it must be "a building which is designed to remain as or become a dwelling house."

    • Secondly, it must be a "listed building, within the meaning of the Planning (Listed Buildings and Conservation Areas) Act 1990".

    These two requirements are cumulative, being separated by the word "and".

  10. The actual outbuilding to which the alterations in this case were made was not designed to remain as or become a dwelling house. It was designed to be a games room, changing room and swimming pool. It therefore did not satisfy the first part of the definition. "Listed building", on the other hand, is a statutory concept, a notional building which by virtue of section 1(5) of the 1990 Act is deemed to include structures within the curtilage of the building described in the list. So the outbuilding may well have counted as a listed building, although it would probably be more accurate to describe it as part of a notional listed building. Whether that is good enough to satisfy the second part of the definition does not arise. The claim to zero rating fails at the first hurdle.

  11. The majority of the Court of Appeal treated the first part as satisfied by deeming the outhouse and the principal house (which was a dwelling house) to be a single building to which the alterations had been made. The only justification given for this heroic piece of deeming was an analogy with the definition of a "listed building" in the 1990 Act. The importation of this concept into the first part of the definition was described by the majority as "suffusive" or "holistic". It seems rather to have involved some process of osmosis by which the artificial definition of a "listed building" in the 1990 Act, to which reference was made in the second part of the definition, passed through the membrane of the word "and" and infected the meaning of the ordinary word "building" in the first part. In my opinion there is no ground for attributing such an intention to Parliament. The meaning of the first part of the definition is perfectly clear and I see no reason not to give "building" the ordinary meaning of the actual building to which the alterations are made.

  12. A good deal of the argument was spent in examining other provisions of the 1994 Act, other statutes and other hypothetical facts to discover clues which might support or undermine the opposing constructions. But in my opinion the language is too clear to admit contradiction or need support from such tenuous inferences. The reasons why Parliament may have wished to narrow the scope of zero rating to buildings actually used as dwelling houses are convincingly explained by Etherton J in a judgment to which I would pay tribute for its clarity and comprehensiveness.

  13. I would allow the appeal and restore the judge's order.

    Lord Hope of Craighead

    My Lords,

  14. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Walker of Gestingthorpe. I agree with it, and for the reasons which he has given I too would allow the appeal. But, as we are not unanimous and as we are differing from the majority in the Court of Appeal, I wish to add these brief observations.

  15. The issue in this case is one of statutory construction. At the centre of the dispute is the question how the expression "protected building" as defined for the purposes of Group 6 in Schedule 8 to the Value Added Tax Act 1994 in note (1) to the Group is to be applied in a case where works of reconstruction or alteration are being carried out to a building ("the outbuilding") which lies within the curtilage of a listed building ("the house") but has not itself been listed in its own right. The effect of the definition of the expression "listed building" in section 1(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990 is that the outbuilding must be treated as part of the house for the purposes of that Act. So it is subject to the controls set out in Chapter II of Part I of that Act, which prohibit the carrying out of any works of alteration which may affect its character as a building of special architectural or historical interest unless they have been authorised. The taxpayers' argument is that the fact that the outbuilding is to be treated as part of the house for the purposes of the 1990 Act is sufficient to entitle it to be treated as part of the house for the purposes of the definition of the expression "protected building" in Group 6.

  16. There is, as I see it, a simple answer to this argument. The definition in note (1) to the Group does not say that a building which is a listed building within the meaning of the 1990 Act is a protected building. What it says is that a protected building is a building which has certain characteristics and is a listed building within the meaning of the 1990 Act or a scheduled monument within the meaning of the Ancient Monuments and Archaeological Areas Act 1979. This is a different drafting technique from that which would lead directly to the result that the taxpayers are contending for.

  17. In Debenhams Plc v Westminster City Council [1987] AC 396 it was held that the extended definition of "listed building" in section 54(9) of the Town and Country Planning Act 1971 (from which section 1(5) of the 1990 Act is derived) applied equally for the purposes of paragraph 2(c) of Schedule 1 to the General Rate Act 1967. The technique which was used in that case was to say that no rates were to be payable in respect of a hereditament for any period during which it ("the hereditament") was included in a list complied or approved under section 54 of the 1971 Act. It was in that context that Lord Keith of Kinkel said, at p 404E-F, that it would be an absurd result, such as could not have been intended by Parliament, if a structure subject to building control by the 1971 Act were to be treated as not so subjected for the purpose of some other Act dealing with the consequences of listing.

  18. The same could have been said if the definition with which we are concerned had provided that a building which was subject to building control as a listed building was a protected building. That would have amounted to a clear declaration that its treatment as a protected building was a consequence of listing. But the technique which the draftsman has used in note (1) is to direct the reader's attention instead to the building itself in the first instance. The context is that of the supply of goods and services, and the question is whether the supply attracts zero-rating for the purposes of value added tax. The first step is to identify the building in connection with which the supply is made. There is no room for doubt as to how one must go about this exercise. It is the building which is being reconstructed or altered (or each building, if the supply is made in connection with more than one building) that attracts the provisions for zero-rating in Group 6. That building must also be a listed building or a scheduled monument. But this is only one of several requirements that must be satisfied before it can be said that the building is a protected building. Listing is a prerequisite if the building is to be treated as a protected building. But there are other requirements too - that it is designed to remain as a dwelling, and so on - that must be satisfied.

  19. The difference between these two approaches can be seen perhaps even more clearly when one considers the treatment which is given by the definition in note (1) to Group 6 to scheduled monuments. Section 1(11) of the Ancient Monuments and Archaeological Areas Act 1979 provides that in that Act "scheduled monument" means any monument which is for the time being included in the Schedule. Section 61(7) provides:

    "Monument" means (subject to subsection (8) below) -

    (a)

    any building, structure or work, whether above or below the surface of the land, and any cave or excavation;

    (b)

    any site comprising the remains of any such building, structure or work or of any cave or excavation; and

    (c)

    any site comprising, or comprising the remains of, any vehicle, vessel, aircraft or other movable structure or part thereof which neither constitutes nor forms part of any work which is a monument within paragraph (a) above;

    and any machinery attached to a monument shall be regarded as part of the monument if it could not be detached without being dismantled.

    Section 61(10) provides that references in the Act to a monument include references to the site of the monument and to a group of monuments or any part of a monument or group of monuments.

  20. It is plain that the definition of "scheduled monuments" in the Ancient Monuments and Archaeological Areas Act 1979 is capable of extending to things that do not fall within the ordinary meaning of the word "building". It is plain, too, that it is capable of extending to things that could not possibly be said to be "designed to remain as or become a dwelling or a number of dwellings" or to be "intended for use solely for a relevant residential purpose or a relevant charitable purpose" (see the definition of these expressions in notes (4) and (6) to Group 5 which are applied to Group 6 by note (3) to that Group). Here again it cannot be said that the definition of "protected building" in note (1) is dealing simply, in the case of scheduled monuments, with the consequences of the monument having been included in the schedule. The structure that is being reconstructed or altered must first be identified and the ordinary meaning of the word "building" must then be satisfied. It is only if it is satisfied and the other requirements in the definition are met that the question needs to be addressed as to whether the building in question is a scheduled monument.

  21. The consequences of this approach to the definition may be to produce results which appear odd and unreasonable. The facts of the present case can perhaps be said to fall into that category. The house and the outbuilding are in the same occupation, they are occupied together as a single dwelling and both buildings fall within the definition of a listed building for the purposes of the 1990 Act. Prior to the abolition of the rating system for domestic properties by the Local Government Finance Act 1988 they would have been entered in the valuation list as a single hereditament. But there is no getting away from the fact that it is only the outbuilding and not the house that is being altered, and it is the house and not the outbuilding that has been listed. We must take the definition in note (1) as it stands, and we must construe it as we find it. In my opinion the ordinary meaning of the words used, taken in the order in which they are set out in the definition, leads inevitably to the result contended for by the commissioners.

    Lord Walker of Gestingthorpe

    My Lords,

  22. This appeal raises a single issue of statutory construction on the legislation relating to zero-rating, for VAT purposes, of alterations to listed buildings. The issue is whether the expression "protected building" in item 2 of Group 6 in Schedule 8 to the Value Added Tax Act 1994 ("VAT Act 1994") includes an outbuilding which is not itself listed under the Planning (Listed Buildings and Conservation Areas) Act 1990 ("the 1990 Act"), but is protected under that Act because it is (and has been since the inception of the modern system of planning control in 1948) a structure within the curtilage of a listed building.

  23. The issue arises because in the VAT Act 1994 Parliament has defined "protected building" by reference to (among other requirements) the definition of "listed building" in section 1(5) of the 1990 Act. Note (1) to Group 6 is as follows:

    'Protected building' means a building which is designed to remain as or become a dwelling or number of dwellings (as defined in note (2) below) or is intended for use solely for a relevant residential purpose or a relevant charitable purpose after the reconstruction or alteration and which, in either case, is—

    (a)

    a listed building, within the meaning of—

    (i)

    the Planning (Listed Buildings and Conservation Areas) Act 1990 ....

    In section 1(5) of the 1990 Act, Parliament has added words so as to extend the basic meaning of what is being defined:

    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—

    (a)

    any object or structure fixed to the building;

    (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.

    Your Lordships are therefore faced with one definition (that in the 1990 Act) which (at any rate in paragraph (b) of the tailpiece) introduces what the taxpayers acknowledge to be a statutory fiction; and a second definition (that in VAT Act 1994) which operates by reference to another statute dealing, not with any form of taxation, but with planning control.

  24. The listed building to which the appeal relates is a dwelling-house known as The Mere at Little Houghton, Northamptonshire. The house and its immediate surroundings are described in some detail in the decision of the Birmingham VAT and Duties Tribunal (Chairman, Mrs. J C Mitting). The description was repeated in the judgment of Etherton J on appeal [2001] STC 585, 587-9 and in the judgment of Aldous LJ on further appeal to the Court of Appeal [2002] EWCA Civ 692; [2002] STC 829, 831-3. At the outset of the litigation the details were important because there was an issue as to whether the house and the outbuilding were indeed physically separate (they are linked by a sandstone wall). But that issue is now gone. It is sufficient to say that the main house is a handsome residence, built in about 1830 and constructed partly of brick covered in stucco and partly of sandstone. 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.

  25. On 30 August 1995 listed building consent was given for

    construction of indoor swimming pool and conversion of existing barn into changing and games facilities together with detached garage at The Mere, Bedford Road, Little Houghton.

    It has at all times been common ground that the cost of some of these works must attract VAT at the standard rate. The issue is whether any part of the works qualifies for zero-rating. This depends on whether part of the works consists of "an approved alteration of a protected building" within item 2 of Group 6 of Schedule 8 to the VAT Act 1993. Different views have been taken at different stages of the appeal process. The Tribunal's decision (released on 4 July 2000) was in favour of the taxpayer, Zielinski Baker & Partners Ltd (a firm of planning and development consultants, building surveyors and project managers who act for the owners of the house, Mr. and Mrs. Dutton). On 15 March 2001 Etherton J allowed the appeal of the Commissioners of Customs & Excise. On 17 May 2002 the Court of Appeal by a majority (Tuckey and Rix LJJ, Aldous LJ dissenting) allowed the consultants' appeal. The commissioners appeal with leave granted by your Lordships' House on 2 April 2003.

  26. The commissioners' printed case contains a mild complaint that in his judgment Rix LJ went into the history and development of this part of the VAT legislation even though the Court of Appeal had indicated during the hearing that it would not be helpful. To my mind the background history, even if it were not directly relevant as an aid to construction, would be almost indispensable as an aid to comprehension. In any case I think it does assist as to the general legislative aim (and justification in Community law) of this part of the VAT legislation.

  27. The imposition of VAT in the United Kingdom is required by European Union legislation which has from the first aimed at the progressive harmonisation of member states' legislation on turnover taxes. There is a useful summary in the opinion of Advocate General Darmon in Commission of the European Communities v United Kingdom (Case 416/85) [1990] 2 QB 130, 135-136, paras 1-4. EC Council Directives recognised that harmonisation would have to be a gradual process. In particular, Article 28(2) of EC Council Directive 77/388 of 17 May 1977 ("the Sixth Directive") as amended by EEC Directive 92/77 permitted "exemptions with refund of the tax paid" (to which zero-rating was accepted as broadly equivalent) on a transitional basis for measures which were in force on 1 January 1991, were in accordance with Community law, and fell within the final indent of Article 17 of EC Council Directive 67/228 of 11 April 1967 ("the Second Directive"). That permitted such measures to be taken only "for clearly defined social reasons and for the benefit of the final consumer".

  28. The European background helps to explain the evolution of the VAT treatment of building works under domestic legislation. Under the Finance Act 1972, which introduced VAT into the United Kingdom, all construction and alteration of buildings (of any sort) was zero-rated. In 1981 the Commission questioned the legality of the width of this measure (and of some other zero-rating provisions then in force). Discussions ensued and there were some changes of position. In particular, by the Finance Act 1984, the scope of the zero-rating of building works (then in Group 8 of Schedule 5 to the Value Added Tax Act 1983) was cut down by excluding almost all works of alteration (as opposed to construction). But a new Group 8A (the predecessor of the current Group 6) was introduced covering the reconstruction or alteration of a building which was a listed building or a scheduled monument. The Commission dropped some of its objections but maintained its objection to the zero-rating of construction works "in so far as the zero rate is not restricted to buildings by and for the final consumer within a social policy".

  29. This difference of opinion came before the Court of Justice of the European Communities ("the ECJ") in the proceedings already mentioned. On 21 June 1988 the ECJ upheld the Commission's objections, but only as regards industrial and commercial buildings and civil engineering works (see [1990] 2 QB 130, 149-150, paras 36-39). The ECJ stated in para 36:

    With regard to buildings intended for housing, the Commission's arguments cannot be upheld. The measures adopted by the United Kingdom to implement its social policy in housing matters, that is to say, facilitating home ownership for the whole population, fall within the purview of 'social reasons' for the purposes of the last indent of article 17 of the Second Directive.

    The outcome was that by the Finance Act 1989 the domestic legislation was reshaped so as to focus zero-rating of building works more directly on social objectives: that is housing, residential communities of various sorts (such as children's homes, old people's homes and hospices) and premises used by charities for non-commercial purposes (or as a village hall). These social objectives were spelled out both in the amended Group 8 (Construction of Dwellings, etc) and in the amended Group 8A (Protected Buildings).

  30. Between 1984 and 1989 the provisions of Group 8 contained an expanded note (2) which introduced the concept of a "secondary building" constructed in the garden or grounds of a main building. This disappeared in 1989. Since then the legislation has been consolidated in the VAT Act 1994, and some relatively minor amendments have been made, notably by the Value Added Tax (Protected Buildings) Order 1995 (SI 1995/283) (which substituted a new text for Group 6 but made few changes of substance).

  31. I have already set out note (1) to Group 6 in Schedule 8 to VATA 1994. I must now put it in its context by setting out all the relevant parts of Group 6:

    GROUP 6

    PROTECTED BUILDINGS

    Item No

    1.

    The first grant by a person substantially reconstructing a protected building, of a major interest in, or in any part of, the building or its site.

    2.

    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 consultant or in a supervisory capacity.

    3.

    The supply of building materials to a person to whom the supplier is supplying services within item 2 of this Group which include the incorporation of the materials into the building (or its site) in question.

    Notes

    (1)

    'Protected building' means a building which is designed to remain as or become a dwelling or number of dwellings (as defined in note (2) below) or is intended for use solely for a relevant residential purpose or a relevant charitable purpose after the reconstruction or alteration and which, in either case, is—

    (a)

    a listed building, within the meaning of—

    (i)

    the Planning (Listed Buildings and Conservation Areas) Act 1990 .... or

    (b)

    a scheduled monument, within the meaning of—

    (i)

    the Ancient Monuments and Archaeological Areas Act 1979 ....

    (2)

    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.

    (3)

    Notes (1), (4), (6), (12) to (14) and (22) to (24) of Group 5 apply in relation to this Group as they apply in relation to that Group but subject to any appropriate modifications ....

    (6)

    'Approved alteration' means ....

    (c)

    in any other case, works of alteration which may not, or but for the existence of a Crown interest or Duchy interest could not, be carried out unless authorised under, or under any provision of—

    (i)

    Part I of the Planning (Listed Buildings and Conservation Areas) Act 1990 ....

    and for which, except in the case of a Crown interest or a Duchy interest, consent has been obtained under any provision of that Part,

    but does not include any works of repair or maintenance, or any incidental alteration to the fabric of a building which results from the carrying out of repairs, or maintenance work ....

    (10)

    For the purposes of item 2 the construction of a building separate from, but in the curtilage of, a protected building does not constitute an alteration of the protected building.

  32. During the course of the appeal process both sides' arguments have to some extent changed. There is therefore no discourtesy to the careful decision of the Tribunal Chairman, or to the full and clear judgment of Etherton J, if I proceed at once to the judgments in the Court of Appeal. Aldous LJ began with the commissioners' cross-appeal against the judge's rejection of their argument that the tailpiece to section 1(5) of the 1990 Act is not carried over into the VAT legislation. Aldous LJ dismissed this argument [2002] STC 829, 836, para 14, for the same brief reasons as the judge had dismissed it at [2001] STC 585, 604, para 35:

    Note (1)(a) of Group 6 provides that an essential feature of a protected building is that it is a listed building 'within the meaning of' the 1990 Act. A listed building 'within the meaning of' the 1990 Act is a building which falls within the extended definition in section 1(5) of the 1990 Act.

    Rix LJ agreed (p 845, para 45), relying on note (10) (to which it will be necessary to return); and Tuckey LJ agreed with the whole of Rix LJ's reasoning (p 838, para 29). This point is therefore one of the few points on which there has been judicial unanimity. Nevertheless the commissioners raise it again in your Lordships' House.

  33. If the commissioners succeed on this point (which I will call the section 1(5) point) the other issues fall away. If the commissioners do not succeed on it, your Lordships have to resolve the difference of opinion between Aldous LJ (on the one hand) and Rix and Tuckey LJJ (on the other hand). Aldous LJ expressed his view shortly and simply [2002] STC 829, 837, para 20:

    In the present case the approved alterations were made to a building, namely the outbuilding, not the house. The outbuilding was a listed building within the meaning of the 1990 Act. But it was not a dwelling nor was it to be used for residential purposes. It was therefore not within the definition of 'protected building' in note (1) and therefore the supplies were not zero-rated. There is nothing in item 2 or note (1) which imports the idea that alterations to the outbuilding should be deemed to be alterations to the house.

    When Aldous LJ said that the outbuilding was a listed building within the meaning of the 1990 Act he must have meant that it was, under the tailpiece to section 1(5) of that Act, to be treated as part of a listed building.

  34. The reasoning of Rix LJ was more complex and was developed at greater length. It cannot be summarised briefly without over-simplification. But the salient points included Rix LJ's "holistic" (as opposed to "step by step") approach to the issue of construction (pp 839-840, paras 34, 35 and 37 and passim); his view (para 36) as to the right starting-point being the essential concept of the protected building; his analysis of the significance of the reference to a garage in note (2) (p 842, para 44) and of note (10) (pp 843-844, paras 49-51); and his view (in agreement with Aldous LJ) that the European dimension did not throw light on the issue of construction (p 845, para 53). Rix LJ's own summary of his reasoning is at p 845, para 54:

    Once the holistic approach is adopted, the temptation is avoided of rejecting the appeal on the simple ground that it is the outbuilding that must qualify as the protected building and must therefore be a dwelling in itself. The concept of 'an approved alteration of a protected building' supports the view that the building with which the court is concerned is the main building, not the secondary building. So does note (10), which is otherwise turned into a nonsense. The items and notes under Group 6 are careful to deal expressly with all or at any rate most of the essential questions which would clearly arise for the reader. The concept of a protected building is defined. The concept of substantial reconstruction (see item 1) is defined in note (4). An approved alteration is defined. Mere repair and maintenance is put on one side. Can there be apportionment where services are supplied in part for an approved alteration and in part for other purposes? Yes, see note (9). A definition of listed buildings is adopted which renders separate outbuildings part of the listed buildings themselves. In such circumstances, if the draftsman wished again to separate such outbuildings from the listed building for the purpose of requiring that each such outbuilding had to qualify as a dwelling by itself, when it never had to qualify as a listed building by itself but was an integral part of a listed building for all that it was physically separate, then I would have expected the notes to deal expressly with that requirement, just as they had at one time, albeit for different reasons not connected with the section 1(5)(b) definition, made distinctions between main buildings and secondary buildings in the grounds of the former. There is nothing in the rationale of the European jurisprudence nor of Group 6 to require the commissioners' approach.

  35. Since the section 1(5) point is potentially determinative of the whole appeal, it is tempting to consider it first, separately from the other arguments about the correct construction of item 2 in Group 6. That temptation is reinforced since before your Lordships Mr. Walters QC (for the taxpayers) has relied on a decision of your Lordships' House, not cited below, which is said to be decisive against the commissioners on this point. But there is essentially a single question of construction, even though it is for purposes of discussion necessary to try to identify its main elements. In my view it is better not to sever one part of the issue of construction and decide it in isolation.

  36. The definition of "protected building" in note (1) to Group 6 refers to two statutory codes enacted (in varying forms applicable in England and Wales, Scotland and Northern Ireland respectively) for the protection of two categories of structure which form part of the national heritage: that is, listed buildings and scheduled monuments. These categories are defined in a way which in theory permits a wide overlap. Every listed building must be a building. "Monument" is more widely defined (in England and Wales, in section 61(7) of the Ancient Monuments and Archaeological Areas Act 1979—"the 1979 Act") and includes

    any building, structure or work, whether above or below the surface of the land, and any cave or excavation[;]

    and also various types of site. The explanation for this rather untidy scheme is largely historical. The protection of ancient monuments goes back at least to the beginning of the last century (the first Royal Commission on the Historical Monuments of England was appointed in 1908) whereas listed building control was introduced by the Town and Country Planning Act 1947. Under that Act and its successors (now, in relation to listed buildings, the 1990 Act) the Secretary of State may either compile lists of buildings or approve lists previously prepared by the Royal Commission (or its successors).

  37. It is unnecessary to go much further into the details of these codes. What is important for present purposes is that both statutory regimes prohibit unauthorised destruction or alteration of the listed or scheduled property, the prohibition being backed by criminal sanctions; and both contain provisions (that is the tailpiece to section 1(5) of the 1990 Act, and section 61(9) and (10) of the 1979 Act) which extend the scope of the prohibition beyond the actual listed building or scheduled building, structure or site. The general legislative purpose of both regimes is the protection of the national heritage, and the particular purpose of the extending provisions is to ensure that not only the heritage property itself, but also its fixtures and its environment, are protected. In Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport & the Regions [2001] QB 59, for instance, section 1(5)(b) prevented the installation of plastic-framed double glazing in a converted stable block which was not itself listed, but was within the curtilage of a mansion which Norman Shaw had built for W S Gilbert.

  38. I return to the difference of opinion between Aldous LJ and Rix LJ. If the outcome of this appeal were to depend on a simple choice between a "step by step" approach and a "holistic" approach to statutory construction, it would be easily resolved in favour of the latter. A step by step approach sounds pedestrian and mechanistic ("ticking boxes" is, no doubt rightly, a fashionable term of disparagement) whereas a holistic approach would seem to accord with the universally acknowledged need to construe a statute as a whole.

  39. But in my opinion your Lordships are not here faced with such a stark or simple choice. Undoubtedly, the relevant provisions of the VAT Act 1994 must be construed as a whole, but they amount to a text of some complexity. In practice the reader has to assimilate the text piece by piece (or in the language of patent law, integer by integer), forming a provisional view as to the meaning and effect both of each constituent part and of the emerging whole. The reader's provisional view may have to be modified more than once, especially as prolonged study may increase (rather than dispel) the difficulties of the text (the written and oral submissions to your Lordships on note (10) to Group 6 present a good example of this). Sometimes the final conclusion may be no more than the least satisfactory resolution of the difficulties (although in the end I have no doubt as to how this appeal should be resolved).

  40. In this case the key part of the text is the definition of "protected building" in note (1). So far as relevant, it can be divided into three integers. A "protected building" means [1] A building [2] which is designed to remain as or become a dwelling (as defined in note (2)) after the alteration and [3] which is a listed building within the meaning of the 1990 Act. On the provisional assumption that the courts below were right on the section 1(5) point, "listed building" in the third integer must be taken as including, as part of the listed building, a separate structure (built before 1 July 1948) within the curtilage of a listed building. But it is accepted that the outbuilding at The Mere was not designed to become a dwelling after the alteration. So the extended definition (or statutory fiction) in section 1(5)(b) of the 1990 Act cannot assist the taxpayers unless it is to be reflected back onto the first integer ("a building") so as to extend (and extend in an unusual and awkward fashion) the natural meaning of that simple expression.

  41. I can see no good reason for such an unnatural construction. I can readily accept Rix LJ's view (at p 840, para 37 of his judgment) that

    the whole concept of a 'protected building' is suffused with the inherent idea that the building in question is either listed or scheduled.

    But the requirements that the subject-matter of the "approved alteration" should be (1) a building and (2) designed to become a dwelling, indicate that Parliament intended to give the benefit of item 2 of Group 6, not to the whole set of listed buildings and scheduled monuments (and structures or sites deemed to form part of them) but only to a subset (that is those which are buildings to be used for residential purposes).

  42. That construction is to my mind much the most natural construction of the language of the statute. It is reinforced by considerations of legislative purpose. The Court of Appeal derived little assistance from the European dimension, but at least it shows that the example of an orangery (within the curtilage of a listed country house) altered so as to be used for commercial catering (which Rix LJ accepted, at p 844, para 52, with equanimity) is hard to reconcile with the social policy of promoting home ownership which the ECJ recognised in Commission of the European Communities v United Kingdom (Case 416/85) [1990] 2 QB 130. The ECJ did not have to consider the provisions about protected buildings introduced in 1984, but it is clear that the changes made in 1989 are focused on home ownership (and similar purposes) in relation to what is now Group 6 as well as in relation to what is now Group 5. The protection of the national heritage is no doubt another social objective, but it is less clearly articulated (especially as repair and maintenance, notoriously the heaviest burden on owners of listed buildings, are excluded) and it appears to be subordinate to the housing objective.

  43. Mr. Lasok QC (for the appellant commissioners) accepted that although a building (including a protected building) may consist of more than one dwelling, a dwelling may not consist of more than one building (except for a detached garage which satisfies the conditions at the end of note (2)). This produces something of an anomaly. If the owner of a listed mansion obtains listed building consent to install a jacuzzi or a swimming pool in his cellar, the work of alteration will be zero-rated; but if the installation is in the old stables (a detached building), the work will attract VAT at the standard rate. Similarly he could (with listed building consent) obtain zero-rating if he turned an attic into an en suite guest room, but not if he made a similar alteration to a detached potting shed (unless it qualified as a separate dwelling with self-contained living accommodation). Mr. Lasok submitted that these are the sort of grey areas which will always be found at the edges of any statutory code, but that zero-rating was a matter for Parliament (within its margin of appreciation under Community law) and that (as zero-rating is in the nature of an exemption) the language used by Parliament should not be stretched beyond its natural meaning. I would, with some hesitation, accept those submissions.

  44. Mr. Walters placed much emphasis on note (10):

    For the purposes of item 2 the construction of a building separate from, but in the curtilage of, a protected building does not constitute an alteration of the protected building.

    He submitted that this supported his reading of note (2), that on any other reading note (10) was (as the judge concluded at p 603, para 33 of his judgment) meaningless, and that Mr. Lasok's explanation of it was fantastic. I have to say that (in common with Etherton J) I find note (10) unfathomable. I agree that it would make some sort of sense, although only in a strained manner, if the taxpayers' interpretation of note (2) were correct. But I am quite unpersuaded that this uncertain straw in the wind (and the other contextual straws on which Mr. Walters relied) are sufficient to justify doing violence to the reasonably straightforward language of note (2).

  45. In these circumstances I do not find it necessary to consider whether the section 1(5) point provides a simpler route to the result for which the commissioners contend. Their contention on this point faces a formidable obstacle in the form of the decision of this House in Debenhams Plc v Westminster City Council [1987] AC 396, which (on unusual facts) concerned a reference in a rating statute (Schedule 1, para 2(c) to the General Rate Act 1976) to section 54 of the Town and Country Planning Act 1971 (section 54(9) being the predecessor of section 1(5) of the 1990 Act). Lord Keith (with whom all the House concurred on this point) said, at p 404:

    A large part of the argument for the appellants was directed to the proposition that the words in section 54(9) 'for the purposes of the provisions of this Act relating to listed buildings and building preservation notices' had the effect that the enactment which followed them was not to be taken into account for the purposes of Schedule 1 to the General Rate Act 1967. In my opinion that proposition is ill-founded. The quoted words have the effect, for the purposes of the listed building provisions of the Act, of widening the definition of 'building' in section 290(1) of the Act of 1971. No other effect can properly be attributed to them. It would be an absurd result, such as cannot have been intended by Parliament, if a structure subjected to listed building control by the Act of 1971, were to be treated as not so subjected for the purpose of some other Act dealing with the consequences of listing.

  46. Mr. Lasok submitted that the present case is distinguishable. But he did not seek to develop the submission at any length, and he was probably right not to press the point. But the decision in Debenhams Plc v Westminster City Council (which turned on the expression "hereditament" rather than "building") does not in my view affect the construction of note (2) as a whole.

  47. Beyond that it is unnecessary to express a final view on the section 1(5) point. For the reasons set out above (which are essentially the same as those more pithily expressed in the speech of Lord Hoffmann, with which I agree) I would allow this appeal and restore the order of Etherton J with costs in the Court of Appeal; but the respondents must have their costs in your Lordships' House in accordance with the terms on which leave to appeal was granted.

    Lord Brown of Eaton-under-Heywood

    My Lords,

  48. This appeal arises out of a VAT assessment contested by the taxpayers on the ground that the supply in question should properly have attracted zero rating under the Value Added Tax Act 1994 as amended ("the 1994 Act").

  49. To identify and resolve the issues now arising for decision it is necessary to refer to two buildings, one a listed building known as Mere Court ("the house"), the other, within the curtilage of the house but not fixed to it, an outbuilding ("the outbuilding") which the taxpayers converted from a barn to a changing room and games room to be used in conjunction with an indoor swimming pool which they constructed alongside it.

  50. The Planning (Listed Buildings and Conservation Areas) Act 1990 ("the 1990 Act") provides by section 1(5):

    1.

    (5)

    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—

    (a)

    any object or structure fixed to the building;

    (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.

  51. The outbuilding had formed part of the land since before 1 July 1948 so that it was to be treated as part of the Building and so that authorisation was required (by other provisions of the 1990 Act) and duly obtained for its conversion.

  52. Whether or not the supply of services here in question qualify for zero rating depends upon whether it falls within item 2 of Group 6 of Schedule 8 to the 1994 Act, namely as: "The supply [of the relevant services] in the course of an approved alteration of a protected building."

  53. It is necessary at this stage to read the more directly relevant parts of note (1) to Group 6:

    (1)

    'Protected building' means a building which is designed to remain as or become a dwelling or number of dwellings .... and which .... is

    (a)

    a listed building, within the meaning of (i) [the 1990 Act] ....

  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 constituted an approved alteration of a building. The critical question, however, is which building for the purposes 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"; rather it was at most under the 1990 Act definition "part of" the Building (itself a listed building) and, as this House decided in Shimizu (UK) Ltd v Westminster City Council [1997] 1 WLR 168, although part of a building may be a listed building, a part of a listed building cannot itself be a listed building. (I say the outbuilding was "at most" a part of a listed building. If, contrary to the conclusions reached both at first instance and by each member of the Court of Appeal, the commissioners' secondary argument were correct and the final limb of the 1990 Act definition is not to be imported into the 1994 Act, it would not even amount to that. To my mind, however, nothing turns on this secondary argument and I am accordingly content to assume that it is ill-founded.)

  56. The argument in favour of the alterations being, for item 2 purposes, to the house rather than the outbuilding is essentially this. Group 6 finds its origins in Group 8A (also headed Protected Buildings) which was introduced into Schedule 5 of the VAT Act 1983 by the Finance Act 1984. Item 2 of Group 8A zero-rated "the supply, in the course of an approved alteration of a protected building, of any [relevant] services", and the notes defined protected building simply to mean a building which was either a listed building or a scheduled monument within the meaning of the respective legislative provisions then applying.

  57. Before that date all alterations to all buildings had been zero-rated, an exemption which the commissioners clearly came to regard as too generous once this House in Customs & Excise Commissioners v Viva Gas Appliances Ltd [1983] 1 WLR 1445, 1451 had decided that any work on the fabric of a building constituted its alteration "except that which is so slight or trivial as to attract the application of the de minimis rule".

  58. Group 8A was in turn restricted following the judgment of the European Court of Justice in Commission of the European Communities v United Kingdom (Case 416/85) [1990] 2 QB 130 by an amendment effected by the Finance Act 1989 to confine zero-rating in the case of protected buildings to the reconstruction and alteration of certain defined classes of residential buildings. The wording of Group 6 today derives directly from the 1989 amendment.

  59. Such being the history of this enactment it is the taxpayers' case, accepted by the majority below, that item 2 was intended to encompass anything constituting the approved alteration of a listed building or a scheduled monument, provided only and always that such listed building or monument building was to remain or become a dwelling. Section 7 of the 1990 Act prohibits works for the alteration of a listed building "in any manner which would affect its character as a building of special architectural or historic interest, unless the works are authorised." The authorisation of such works under the 1990 Act is provided by note (6) to Group 6 to constitute the approved alteration of the listed building. The focus of Group 6 is, it is therefore suggested, upon the listed building itself, and thus it is that the extended definition of such a building to include any outbuilding within the curtilage falls to be incorporated into Group 6 for all purposes. This is the argument reflected at p 840, para. 37 of Rix LJ's judgment below when he says of the commissioners' case, focusing as that does on the outbuilding and asking whether that itself is a protected building, that it "ignores that the concept of a listed building has already been built into the idea, already mentioned in item 2, of 'an approved alteration'," and that "such an approach begs the very question of 'which building'?" "The concept of protection", Rix LJ then points out, "is not a value added tax (VAT) concept, it is a concept of listing or scheduling, a heritage concept".

  60. Para 39 of Rix LJ's judgment, at p 841, is also important:

    Item 2 introduces the concept of an 'approved alteration of a protected building'. It is possible to found an important part of reasoning in favour of the commissioners on the fact that the alteration in this case was in a practical sense to the outbuilding, not to the house .... I am concerned, however, that this is to misstate the legal position. Given that the 'approved alteration' in question is an alteration which cannot be carried out unless authorised under the 1990 Act (as note (6) confirms) and that that Act is the statute which provides the definition of a listed building as one that includes (in our case) the outbuilding, it is in my judgment more natural to consider that the 'approved alteration' is an alteration to the house, which is after all the building which is listed.

  61. This paragraph is central to the reasoning of the majority below and necessarily represents a core element of the taxpayers' argument. If, indeed, the alteration carried out in this case, although "in a practical sense to the outbuilding", is "more natural[ly]" to be considered an alteration to the house, then clearly it is the 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 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 was not.

  62. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Walker of Gestingthorpe. I agree with it.

  63. I too would allow this appeal.


Cases

Debenhams Plc v Westminster City Council [1987] AC 396; Commission of the European Communities v United Kingdom (Case 416/85) [1990] 2 QB 130; Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport & the Regions [2001] QB 59; Shimizu (UK) Ltd v Westminster City Council [1997] 1 WLR 168; Customs & Excise Commissioners v Viva Gas Appliances Ltd [1983] 1 WLR 1445

Legislations

Planning (Listed Buildings and Conservation Areas) Act 1990: s.1

Value Added Tax Act 1994: Sch.8

Ancient Monuments and Archaeological Areas Act 1979: s.1, s.61

EC Council Directive 67/228, 11 April 1967 ("the Second Directive"): Art.17

EC Council Directive 77/388, 17 May 1977 ("the Sixth Directive" amended by EEC Directive 92/77): Art.28(2)

Representations

Lasok QC (for the appellant commissioners)

Walters for the respondent


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