Citation: [2021] EWCA Civ 136
Clin v Walter Lilly & Co. Ltd [2021] EWCA Civ 136 was a dispute over the contractual allocation of risk and responsibility for critical delay to high-value building works at the appellant’s luxury residential property in the Royal Borough of Kensington and Chelsea.
By a modified JCT contract, the appellant homeowner, Mr Clin, engaged the building contractor, Walter Lilly, to carry out building works. Those works involved the reconfiguration of what were once two adjacent terraced properties into one larger property. Under the building contract, Mr Clin was under an implied contractual obligation to use all due diligence to obtain in respect of the Works any permission, consent, approval or certificate required under, or in accordance with, the provisions of any statute or statutory instrument for the time being in force pertaining to town and country planning ([2018] EWCA Civ 490 at [37]). During the course of the building works, the local planning authority asserted that the works in question constituted or involved ‘demolition’ within the meaning of s. 74 of the Planning (Listed Buildings and Conservation Areas) Act 1990, for which conservation area consent was required. In the face of that statement, Walter Lilly ceased works on site until conservation area consent was obtained by professionals engaged by the appellant homeowner.
At first instance, Waksman J held that the building works did constitute ‘demolition’ within the meaning of the Act; that conservation area consent was required; and that Mr Clin was contractually responsible for the critical delay to the works, being in breach of his implied contractual obligation to Walter Lilly. On appeal, the principal issue, raised by Mr Clin’s primary ground of appeal, was whether – on the proper interpretation of s. 74 – the ‘demolition’ question was purely quantitative (as Walter Lilly argued), or rather required consideration of qualitative matters, including the effect of the building works on the character and appearance of the area in which the building was situated (as Mr Clin argued). Having regard to the wording and purpose of the Act, and guided by the House of Lords decision in Shimizu [1997] 1 WLR 168, the Court of Appeal held (with the lead judgment from Carr LJ) 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 ie by reference to the extent of the demolition. Qualitative matters, including questions relating to the impact of the building works on the character and appearance of the area, were only relevant when the local planning authority came to decide whether to grant conservation area consent.
On a secondary ground of appeal, the Court of Appeal refused to interfere with Waksman J’s finding that the building works constituted demolition even on a purely quantitative analysis. On a tertiary ground of appeal, the Court of Appeal rejected Mr Clin’s argument that Waksman J had failed to appreciate the significance of a certificate of lawful development for the amalgamation of the two adjacent properties, which Mr Clin had obtained prior to commencement of the building works. The appeal was dismissed.
Vincent Moran QC, James Maurici QC and Tom Coulson acted for the Appellant
David Thomas QC, Rupert Warren QC and Matthew Finn acted for the Respondent
