Zero-rating the construction of buildings: is a building being constructed: retention of façades or ‘façade test’
Note 18 provides for the retention of a façade. A façade is the front or street facing wall but another exterior wall can be considered to be a façade for the purposes of this Note if it has to be retained for the same reason.
A corner site will look out onto a street from two sides and, as a result will have two façades or street facing walls. The two facades must connect to form a corner. However there may be other locations where the building may be said to have two adjoining facades and not look out onto a street or streets.
If a façade is retained, its retention must be a ‘condition or requirement of statutory planning consent or similar permission’. HM Revenue & Customs (HMRC) consider that the condition or requirement must be explicit if the works are to be regarded as the ‘construction of a building’. Where statutory planning consent or similar permission is unclear, other documentation, such as correspondence that identifies the façade and makes clear that its retention is at the insistence of the planning authorities and not at the discretion of the developer or owner, is acceptable.
In Mr G Bremner (VTD 15309), it was confirmed that this condition applies to both the retention of a single façade as well as the retention of a double facade.
In Bruce Pugh (VTD 17013), there was no such condition and the Chairman dismissed the appeal.
In Richard Midgley and Stella L Midgley (VTD 15379) and Richard and Jean Naylor (VTD 17305), the Tribunal ruled that the planning permission granted in each case contained an implicit condition that a single wall was to be retained and that this was sufficient to satisfy Note 18.
HMRC does not accept this argument. This is because the test then becomes self-serving with retention of a façade or façades being at the discretion of the owner rather than at the insistence of the planners - he will retain, for his own expediency, a façade which local planners have no concern over. This goes against the purpose of the test, which is to allow an exception to the normal rule of entirely demolishing the building only where there is a planning reason to retain the façade, such as to maintain the street scene.
HMRC’s interpretation has been supported by Mr J D & Mrs L B Halliwell (VTD 19735). However, it has to be said that the Tribunal does not always agree with us.
In Kevin Almond ((TC00132), a front façade was retained. HMRC argued that there was no condition of the planning permission that required the façade to be retained. Correspondence suggested it was recommended that the façade be kept. The Tribunal disagreed. They stated
We disagree. It was an express requirement of the planning consent that the development was undertaken in accordance with the plans. The plans (which were produced in evidence and which we reviewed) show that the front façade of the property is to be retained. This is apparent from the notes and annotations on the drawings and in the detail showing how the new walls and joists are to be attached to the existing façade. We therefore find that it was a requirement of the planning consent that the front façade be retained. This is consistent with the fact that the property is an old property in a conservation area. We are of the opinion that had Mr Almond demolished the front façade, the planning authority would have taken enforcement action.
In John Clark (TC00552) and Martin Samuel (TC00872), the Tribunal followed Almond and considered that the requirement to retain a façade need not be explicit.
On the other hand, the Tribunal in Jonathon Berry (TC/2009/14332 - Unreported), considered that some ‘specificity’ was required. They stated
In Kevin Almond v Revenue and Customs Commissioners  UKFTT 177(TC). a tribunal found that where, in a case in which an historic building was located in a conservation area, there was an express requirement that the development be undertaken in accordance with the plans, and those plans showed the relevant façade to be retained, from notes and annotations to the drawings and in detail showing how the new walls and joists were to be attached to the existing façade, it was a condition or requirement of the statutory planning consent that the relevant façade be retained. That case is very different from this. The planning permission…does require the works (which had already been carried out) to be carried out in accordance with the plan. But although the Sections plan in question does refer to ‘existing walls’, it does so without the specificity that would be required to reach a conclusion such as that in Kevin Almond. Not only does it refer to existing walls in the plural, the arrow indicating the position of those walls (and foundations) points in generality only at a typical section and makes no distinction between internal and external walls or facades.
We also agree with [HMRC] that in this case the granting of the planning permission could not be said to have imposed any requirement or condition with regard to any of the existing structure. Its only effect was to permit the retention of any elements of the original building that had been retained. That retention was a matter of choice on the part of the Appellant on grounds of convenience or economics. The planning permissions did not include any condition or requirement for the retention of a single façade.