20464

ZERO-RATING – Construction of building – School – New classrooms, hall and playschool – Whether whole an annexe – No – Whether enlargement of existing building – Classrooms yes – Hall and playschool no – Whether hall and playschool functioning independently – Yes – Whether annexes – Yes – VAT Act 1994 Schedule 8 Group 5 Notes (16) and (17) – Appeal allowed in part

LONDON TRIBUNAL CENTRE

	LONGPARISH CHURCH OF ENGLAND PRIMARY SCHOOL	           Appellant

-	and –

	THE COMMISSIONERS FOR HER MAJESTY’S REVENUE & CUSTOMS 	 Respondents

				Tribunal:	MISS J C GORT (Chairman)
						MR ROY JENNINGS FCA, FTII

Sitting in public in London on 19 June and in Longparish 14 August 2007

Mr Jonathan Evans, appearing as a governor of the Appellant school, for the Appellant

Mr Matthew Barnes of counsel, instructed by HMRC Solicitors Office, for the Respondents

© CROWN COPYRIGHT 2007

DECISION

1.	This is an appeal against a decision of the Commissioners dated 10 February 2005 that the construction services supplied to Longparish Church of England Primary School (“Longparish”) do not qualify for zero-rating pursuant to Group 5 Schedule 8 of the VAT Act 1994 (“VATA”).  

Background

2.	Longparish is a registered charity and voluntary aided school situated in the village of Longparish near Andover.  The school’s trustees own the premises but the school falls within the auspices of the Local Education Authority and Winchester diocese.  It is not registered for VAT.  

3.	In 1998 the village hall committee (a separate registered charity) had commissioned a feasibility study with a view to refurbishing or replacing the village hall.  It was recommended that the committee consider new build.  At the same time the Longparish playgroup (a further separate registered charity) was in need of new accommodation and Longparish needed to replace two temporary classrooms and also needed a school hall.  In 2002 a grant became available from the Department for Education and Science subject to certain conditions and it was therefore decided to combine the project and build on the school land new premises for the playgroup, new accommodation to replace the temporary classrooms, a new hall and a new room which would double as a committee room for the village and a music and drama room for the school.

4.	The first issue for the Tribunal is whether the new building constitutes an annexe within the meaning of Group 5 to Schedule 8 of VATA, and, in determining that issue, whether the building should be considered as a whole, or whether the classrooms, the hall and the playgroup should be considered as separate annexes.  The next question is, if the whole or any of the parts are found to be annexes, then are such annexes capable of functioning independently from the old building, and is the main entrance to the, or any of the annexe(s) via the old building, and is the main entrance to the old building through the annexe(s)?  It was conceded by the Commissioners at the start of the hearing of the appeal that it was intended that all parts of the building should be used for a relevant charitable purpose.

The legislation

5.	Section 30(2) of the VATA provides that the supply of goods or services is zero-rated if the goods or services are of a description for the time being specified in Schedule 8.  

Item 2 of Group 5 of Schedule of VATA provides for zero-rating of:

“The supply in the course of construction of – 

(a)	a building designed as a dwelling or number of dwellings or intended for use solely for relevant residential purposes or a relevant charitable purposes; …

of any services related to the construction other than the services of an architect, surveyor or any person acting as a consultant or in a supervisory capacity.”

Note 16 to Item 2(a) of Group 5 of Schedule 8 of VATA provides:

“For the purpose of this Group, the construction of a building does not include – 

(a)	the conversion, reconstruction or alteration of an existing building; or
(b)	any enlargement of, or extension to, an existing building except to the extent enlargement or extension creates an additional dwelling or dwellings; or
(c)	subject to Note (17) below, the construction of an annexe to an existing building.”

Note 17 to Item 2(a) of Group 5 of Schedule 8 of VATA provides:

“Note 16(c) above shall not apply where the whole or a part of an annexe is intended for use solely for a relevant charitable purpose and – 

(a)	the annexe is capable of functioning independently from the existing building; and 
(b)	the only access or where there is more than one means of access, the main access to:

(i)	the annexe is not via the existing building; and
(ii)	the existing building is not via the annexe.

The evidence

6.	The Tribunal was provided with an agreed bundle of documents which contained inter alia plans of the building and the site and photographs of the partly completed work.  We heard oral evidence from Mr John Alexander BSc. Hons. Dip. Arch (UCL) RIBA, the architect of the project, and from Jeremy Barber, chairman of the Longparish Parish Council.  We also paid a site visit at the Appellant’s behest.  It is doubtful whether without that visit we would have been able to have formed a proper conclusion, given the complexity of the construction itself.  The officer who made the decision in this case had not visited the site.  

7.	The following facts are taken from an agreed statement of facts.

(1)	The Appellant is a voluntary aided school and a charity which is exempt from registration as a charity under the Schools Standards and Framework Act 1998.  The trustees of Longparish own the school premises.  

(2)	On 22 December 2003 the Building Surveyor for the Diocese of Winchester wrote to the Commissioners asking for confirmation that a proposed project to carry out certain construction works on the school premises would qualify as a zero-rated supply of services in the course of the construction of a qualifying annexe to an existing building.

(3)	On 2 March 2004 the Appellant was granted planning permission to carry out certain construction works on the school premises.

(4)	The works in question consist of the construction of an additional structure to the existing school building.  The new structure provides:

(i)	two classrooms which replaced two temporary classrooms previously used;
(ii)	a music and drama room; (the “Ellicock room”)
(iii)	a hall;
(iv)	a kitchen;
(v)	a boiler room; and
(vi)	an area for use principally by a playgroup.

(5)	The existing school building consists of :

(i)	two classrooms;
(ii)	an information and computer technology (“ICT”) room;
(iii)	a library;
(iv)	a staff room;
(v)	a head’s office;
(vi)	a waiting room;
(vii)	an office; and
(viii)	toilets.

The existing school building also used to contain a kitchen and a boiler room, but these were demolished in the course of construction of the new structure.

(6)	The new structure abuts the existing school building.  

(7)	There are two internal points of access between the existing school building and the new structure. The connecting doors between the existing school building and the new structure can be locked. 

(8)	Each of the six parts of the structure listed in paragraph (4) has its own separate access.

(9)	At the time the construction works were carried out, the school had 92 pupils.  The two additional classrooms replaced two temporary classrooms which were previously in use but demolished before the construction works commenced.  The new classrooms are used by approximately half of the school’s pupils.  

(10)	When fully operational, the hall is used as a school hall by the school and as a village hall by the rest of the community.  It is available for use by the community at any time, including during school hours.  The use of the hall is managed by a committee including governors and representatives from the community.  Longparish intends that the use of the hall will in due course be managed by a recently-formed charity, “the Longparish Community Association”.  Longparish expects the school to use the hall for an average of about 65% of school time.  For the rest of the time (evenings, holidays, weekends, and the remaining 35% of school days) it is available for community use.  

(11)	The playgroup area is used principally by a pre-school playgroup called Longparish Playgroup which is a member of the Pre-School Learning Alliance.  Longparish Playgroup is a separate registered charity with its own trustees which provides play facilities to children under the statutory school age.  It uses the playgroup area under a “Transfer of Control Agreement” made with the school governors pursuant to the School Standards and Framework Act 1998.

8.	One of the plans provided to us helpfully shows in outline the footprint of the old school building overlaid with the outline of the new building.  That plan enabled us to see what parts of the original structure had been demolished and exactly where the two structures abutted.

9.	There were two principal entrances: first of all there is the main entrance to the school which goes into the admissions block which is part of the old building. Parents and visitors to the school use that entrance.  The children (other than those attending the playgroup) mainly enter the school via the classrooms which are accessed from the playground which is at the back of the school.  The second entrance is from the playground and is at the end of a long corridor which leads past the two new classrooms and then on the right is an entrance to an existing classroom, and on the left is the Ellicock room.  This corridor divides at the end, on the right is an access to the library, on the left is a corridor leading to the community hall and straight ahead there are cloakrooms and the new kitchen. Both to the right and the left there are lockable doors. There is a completely separate entrance to the hall via a covered walkway which has a notice board containing community notices on it.  The fourth separate entrance is that to the playgroup.  That entrance is off the same covered way as leads to the entrance to the hall, but the playgroup has its own entirely separate entrance on the side of the walkway.  Around the back of the building, beyond the playground, there is a separate play area for younger children as is now required by law.  The playgroup has its own separate play area outside which is used exclusively by the playgroup.  

10.	The playgroup building is a self-contained unit which is almost an exact square.  In that building there are two children’s toilets, an adult toilet, a staffroom and a large playroom.  Off the large room there is a door leading to a small galley kitchen which is not enclosed within the square, but which has locking doors at either end, thus if it is to be used by the playgroup it can be locked off from the main hall which is at the far end of the galley kitchen.  If the galley kitchen is to be used by the main hall, it can be locked from the playgroup end. If the entire area of the playgroup, with the exception of the galley kitchen is treated as a square, then approximately two-thirds of the side of the square off which the kitchen leads abut the end wall of the facilities area which is to the right of the community entrance. At no other point does the playgroup area abut any part of either the old or the new building 

11.	The design and layout of the new building was constrained by several factors:  the site was a sensitive one being next to a Grade I listed church building, and also being very close to the river Test which makes for difficult ground conditions.  The ground conditions themselves meant that the architect could not rely on the new building being supported by the old building, and therefore the building was constructed in such a way that it would be possible to remove all those parts of the old building which had not been removed in the course of the new construction which were deemed to be nearing the end of their useful life, without affecting the structural stability of the new building.  The new buildings were on the same level as the old building but were built on a new base.  It was not possible to build any lower because of the risk of flooding, or to build higher because of the building regulations.  The new roof was supported by the new abutting walls.  

12.	The old building is a timber structure with a flat felt roof.  The new building is a masonry and steel structure with a pitched grey slate roof. There was initially some confusion on the part of the Commissioners because the pitched roof over the end of the Ellicock room and the smaller pitched roofs of the new adjoining classrooms overhang the flat new roof of the new corridor which runs outside those new classrooms at one end and at the other end the roof extends over areas which are used for bins and other general storage.  The flat roof over, and also the walls and doors of, the storage area have been made to look like the old building in such a way that in this area, and this area alone, it is not possible to distinguish which is the old and which the new.  With the exception of this area the new building is quite different in appearance from the old. The old building has a flat roof and is a white painted building with white window frames.  The only part made of brick is a small structure which used to be the roof of the boiler house before the alterations. It is made of yellow brick, whereas the brick used for the new building is red brick and the windows and door frames are of natural wood.  The inside of the new building is very different in appearance and feel from that of the old building. In Mr Alexander’s words:  “The original was founded in rational post-war modernism and the other is rooted in a rural vernacular.”

13.	The hall has its own entrance and it can be entered from the school, but the interconnecting doors can be locked to isolate the hall from the school.  The same is true of the classrooms.  Each element has its own locks and security systems and each element is a separate fire compartment.  Each has its own fire escape strategy which allows the elements to be used independently and without access to the other parts, as defined in the Building Regulations 1991 Approved Document B Section 13. Excluding walls of the playgroup which do not in any event abut the old part of the building, there are only three abutting walls with a total length of 19.5 metres, the total perimeter length of the new building being 159 metres.  

14.	The Ellicock room functions both as a music and drama room for the school and as a committee room for the community.  When used by the community it may be accessed either from the hall or through the separate community entrance at such times as there is an activity in the hall.  It can also be accessed from the school via the corridor leading to the playground, or the library or the existing classrooms.

15.	The playgroup building is subject to a Transfer of Control Agreement which governs the use and occupation of the building.  Under that agreement a payment of £200 per month is made, apart from August when there is no charge.  This is intended to cover the estimated marginal cost to the school of operating the playgroup building during those hours during which the playgroup has use of it, i.e. to cover heating, lighting, cleaning, provision of alarms and fire-extinguishers and insurance.  The playgroup obtains its income from three sources: from nursery education grant funding administered by the Hampshire County Council, secondly, from fees paid for children attending sessions, and thirdly, from fundraising. The playgroup is managed by volunteers, it has paid staff and barely manages to cover its costs.  It is a registered charity and is non-profit making.  

16.	The hall is used by a variety of groups and a key holder/caretaker supervises bookings for the hall and for other elements of the new building.  The Ellicock room is used for the monthly parish council meetings, and the church occasionally also makes use of the playgroup.

17.	As part of the works the boiler room in the old school was taken out and relocated.  The area where the old boiler room had been became a corridor which led from the library in the old school via two sets of double doors to the new main hall.  The old outside wall of the school was taken down at this point, a new set of double doors was put in which lead from the library into this corridor, off which there is also the kitchen, which is not part of this appeal, Longparish having accepted that VAT is payable in respect of that part of the new building.  The area that became the Ellicock room, together with the corridor which is outside that room and lies between it and one of the classrooms in the old school building, was part of the old building although the footprint of the Ellicock room is marginally larger than that of the area it replaced.  Two new walls were constructed: one along the side of the existing classroom, which became the right hand wall of a corridor accessed from the far side of the playground, and the other which became the left hand wall of that corridor on the one side, and formed one wall of the Ellicock room on the other.  Two sections of the old building were taken down where they crossed that corridor, and the wall which formed the end of the old building where it overlaps with the Ellicock room, were taken down.  Thus there is some overlap between the footprint of the old building and that of the new building.  At no point does this overlap encroach on either the hall or the playgroup area, or the entrances thereto.

The Respondents’ case

18.	The Commissioners’ case changed somewhat over time. In part the change of approach was necessitated by factual errors made by the officer dealing with the application. It was not until the hearing of the appeal that the Commissioners conceded that all parts of the new building were to be used for a relevant charitable purpose.  There were also factual errors made as to the entrance to the new hall, it being considered by the officer that the entry to the hall was of necessity via the pre-existing building, which it is not, and as to the playgroup which it was believed required access to the adult toilets and disabled toilets in the pre-existing building.  This is not in fact the case, there being an adult toilet available in the playgroup area. 

19.	The Commissioners invited the Tribunal to consider the new building as a whole, rather than as three separate areas.  However Mr Barnes said it would not be open to the Commissioners to object if the Tribunal treated the three groups separately.  It was also conceded that if it were established that the playgroup is an annexe, then it would meet the requirements of Note 17.

20.	It was the Commissioners’ prime contention that the construction works were an extension within the meaning of Note 16(b), and accordingly are standard rated for VAT purposes. With regard to the interpretation of Note 16 the Tribunal was referred to the case of Bryan Thomas MacNamara (Decision No.16039) in which the question was whether or not building works that provide additional structures to a school so as to enlarge its capacity were an annexe within the meaning of Note 16.  In that case at paragraph 13 of the decision it was reasoned that the purpose of Note 16 was to exclude from the expression `construction of a building’ a series of building works, and that the series of building works found in Note 16 were in descending order of their degree of integration with the existing building as follows:

“Conversions, reconstructions and the alterations of existing buildings, the most closely integrated, are excluded.  Enlargement of existing buildings are then excluded, the word `enlargement’ connoting structural work producing an overall increase in size or capacity.  The word `extension’ in relation to an existing building refers, we think, to building works which provide an additional section or wing to that existing building; the degree of integration is one stage less than with enlargements.  Then come `annexes’ which, as a matter of principle, are also excluded.  The term annexe connotes something that is adjoined but either not integrated with the existing building or of tenuous integration.”

The case of McNamara was also relied on for the proposition that the construction works listed in Note 16(a) to (c) are mutually exclusive, so that if it is found that the works are an extension, they cannot also be an annexe. The Tribunal was also referred to the case of The Archdiocese of Southwark Commission for Schools and Colleges (Decision No.18883) for this proposition.  

21.	For the definition of an annexe the Tribunal was referred to the case of Cantrell v Customs and Excise Commissioners (No 2) [2003] STC 486 where Sir Andrew Morritt VC at paragraph 17 stated:

“An annexe is an adjunct or accessory to something else, such as a document.  When used in relation to a building it is referring to a supplementary structure, be it a room, a wing or a separate building. The tribunal does not seem to have given consideration to this, in my view, crucial aspect of an annexe.  In that respect the decision is vitiated by a mistake of law and is liable to be set aside.”

It was submitted that the approach to be adopted by the Tribunal was to consider in turn whether or not the construction works are properly categorised as an extension, and if not, an annexe, which terms are mutually exclusive.

22.	The Tribunal was referred to the earlier decision in Cantrell v Customs and Excise Commissioners [2000] STC 100 in which Mr Justice Lightman in paragraph 4 of the corrected version of his decision set out the following approach:

“It is necessary to examine the pre-existing building or buildings and the building or buildings in course of construction when the supply is made.  What is in the course of construction at the date of supply is in any ordinary case (save for example where a dramatic change is later made in the plans) what is subsequently constructed. Secondly the answer must be given after an objective examination of the physical characters of the building or buildings at the two points in time, having regard (inter alia) to similarities and differences in appearance, the layout, the uses for which they are physically capable of being put and the functions which they are physically capable of performing.  The terms of planning permissions, the motive behind undertaking the works and the intended or subsequent actual use are irrelevant, save possibly to illuminate the potential for use inherent in the building or buildings.”

23.	The Tribunal was further referred to paragraphs 23, 24 and 27 in the case of The Archdiocese of Southwark where at paragraph 23 the tribunal stated:

“Beginning then with appearance we find that the original building and the new building are very similar in appearance so much so that it is difficult to identify by sight alone where the new building joins the original building.  The layout of the original building and the new building together mean that they are interdependent.  The internal points of access between the original building and the new building mean that the two buildings are now integrated into one whole.  The pupils who occupy the classrooms in the new building have to use rooms in the original building for assembly, eating, use of the library or IT instruction and have to use the main corridor in the original building to access their classrooms in the morning.  Also the pupils in the original building can only gain access to the library through the corridor which is part of the new building. Thus the way in which the buildings are equipped to function indicate that the new building is an extension or enlargement of the original building.  The construction work which produced a new building provided an additional section or area to the original building in its north/west corner which was previously empty.”

In that case the tribunal concluded that the new building could not be an annexe, as it was both joined to, and integrated with, the old building.

24.	The Tribunal was invited to looked at the entirety of the building and how it operated as a unit, rather than considering simply whether the different areas could operate separately.  It was submitted that the new elements were so closely integrated with the old building as to make it unrealistic to describe the new building as an annexe. With regard to the walls, the Tribunal was invited to look at the fact that the new walls could support the old walls as well as the new roof, which suggested a co-dependence between the old and the new building.  We were also invited to take account of the boiler room area, where it was impossible to see where the new and the old met. It was submitted that there was considerable interdependence between the old and the new, the staff having access to all parts and the children leaving through any exit at the end of the day.  Whilst it was accepted that the buildings were put into separate uses as a playgroup facility and a community hall, it was submitted that the actual uses are irrelevant, save for illuminating the potential use. Whilst it was accepted that there was potential for rooms in the school building to be used separately by the locking of various doors, Mr Barnes submitted that the predominant potential use was as a single school building, which is evidenced by the fact that the effect of the works is to bring all parts of the school together.

25.	If, however, the Tribunal were to find that the new building did constitute an annexe, then it was submitted that the Tribunal had to consider whether the new parts were capable of functioning independently and the Tribunal also had to be satisfied as to the issue of the main access to the annexe(s) and the access to the original building.  It was the Commissioners’ case that the annexe as a whole was not capable of functioning independently, and that, the main entrance to the school being either via the annexe entrance, or via the original main entrance, the annexe failed to qualify under Note 17. It was however conceded that the playgroup was capable of functioning independently and, if it were found to be an annexe, then it was accepted by the Commissioners that it would be a qualifying annexe.  

The Appellant’s case

26.	Longparish initially took the point that there had never been a review of the decision taken by the Respondents and the matters that they had raised in correspondence were not dealt with.  This aspect was not pursued at the hearing of the appeal.

27.	Mr Evans relied on the case of MacNamara (supra), paragraphs 10-17, where the chairman, having considered the history of zero-rating as it applied to buildings, analysed Note (16) to Group 5 Schedule 8 as set out at paragraph 20 above.  The chairman then considered in relation to the facts of that case whether the existing building had been converted, and, having asked whether there had been an enlargement of the existing building, considered that, whilst the school in question had been enlarged, he did not think the existing building had been enlarged.  The Tribunal concluded that the building was too closely integrated into the existing building to make it an annexe.  

28.	Longparish relied on the endorsement by the High Court in the case of Cantrell (supra) of the approach of the Tribunal in McNamara, and on Lightman J’s emphasis on the physical character of the two buildings at the relevant point in time as being  determinative of  whether a new building is an annexe.  

29.	In Cantrell (No 2) (supra) an additional requirement was introduced that an annexe must be a supplementary structure, supplementing the existing building.  It was submitted that it followed that if a new building was properly characterised as supplementary, or as an adjunct or an accessory, to an existing building, it is an annexe and not an enlargement or an extension. The Tribunal was also referred to the case of PCC of St Andrews v Customs and Excise Commissioners (Decision No.19061) for this proposition. Cantrell (No.2) was relied on for the proposition that the intended or actual use was irrelevant, it was the use capacity which was the relevant matter.

30.	The key points relied on by Longparish were:

(i)	The new building is to one side of the existing building and is a separate structure, albeit adjoining the existing building;

(ii)	The physical links are minimal, the two buildings are structurally independent; and the new building has been designed so that the existing building could be removed without adversely affecting it;

(iii)	There is no similarity in style or appearance: the two buildings are clearly distinct;

(iv)	There is no single shared access or entrance area – lines of entrance are distinct;

(v)	The layout and physical function of the two buildings is separate and distinct;

(vi)	The purpose of the new building is to supplement the school’s existing buildings: the new building is very much an adjunct or accessory.

31.	With regard to the reliance by the Commissioners on the roof overhang as indication that the new building is not an annexe, Longparish submitted that it is not a structural integration, but purely a matter of visual appearance; it was an inevitable consequence of the pitched roof and in any event was de minimis.  With regard to the Commissioners’ reliance on the fact that the abutment is along five walls, not one, Longparish’s case is that this overstates the extent of the abutment which in reality is a single, albeit kinked, wall which is not structurally significant and is minimal in extent.  The Commissioners’ point that there are two internal points of access was accepted by Mr Evans to be correct, but, he submitted it was not determinative because, set in context, it did not demonstrate substantial integration, the new building remaining only tenuously linked and a distinct, supplementary structure. 

32.	Longparish relied on the Commissioners’ Notice 708 paragraph 3.2.6 where, in considering whether an annexe is being constructed rather than an enlargement or an extension a list of matters is laid out, and it is said:

“An `annexe’ is a structure which has only a minimal physical connection with the existing building.  For example, the structure could be linked to the existing building by means of an enclosed walkway, or abut the existing building along one wall with a connecting door. It would be easily recognisable as a structure that would be a separate building, were it not for the physical connection.”

33.	With regard to the Commissioners’ contention that the classrooms are not capable of functioning independently because pupils and staff use the facilities in the existing building and because they share a single source of heat with the existing building, it was submitted that this misapplied the test by focusing on how the classrooms were used rather than how they were capable of being used, and paragraph 3.2.8 of Notice 708 provides that the shared services should be ignored when considering independent function.  The Commissioners had been wrong to conclude that the hall was not capable of functioning independently from the existing building and that entry to the hall was via the existing building when in fact it had its own separate main entrance and was used independently as a village hall.  The hall was not fitted out as a school hall and was not used exclusively as a school hall.  Its building had enabled the school to free up the classroom which had previously doubled as a hall and it was not accepted by Longparish that to be an annexe the new building had to be smaller than the existing building.

Reasons for decision

34.	Neither party specifically addressed us on whether the construction of the Ellicock room, the removal of the boiler room and the consequential work was in effect an alteration of an existing building which is specifically excluded from zero-rating by Note (16)(a).  Nor were we specifically addressed as to whether the Ellicock room itself was considered to be an annexe taken together with the classrooms, or was to be taken together with the main hall.  The Ellicock room is accessed via the corridor which led past the new corridors, or could also be accessed via the main hall.  Given the overlapping footprints of the old building and the new building in relation to the Ellicock room and the corridor outside it, we cannot see that this area is anything other than an enlargement of the existing building and as such it is excluded from zero-rating.

35.	Another reason for finding that the Ellicock room and adjacent areas, including the kitchen (for which zero-rating was never contended) and the corridor between the kitchen and the Ellicock room and the part of the corridor between the music room and the existing classroom do not qualify as an annexe, is that the new corridor which runs along one wall of the Ellicock room past the new kitchen continues into the old building without there being a wall or door between the point where the new and the old buildings meet. There is full integration of the old and the new in this area. The overhanging roof, to which the Commissioners had pointed as indicating that the annexe was not separate from the existing building in fact overhangs the new flat roof area which is not part of the existing building.  There is therefore such close integration at this point between the old and the new that this part of the building cannot be said to be an annexe.  Whilst Mr Evans pointed to the fact that the new building had been designed in such a way that you could take away the old building and still leave the new building as a functioning unit, the converse is not true.  If you took away all the new building you would not have the existing building as it was, given the demolition of the area which became the corridor and the music room.  

36.	Given our finding in relation to the Ellicock room, we do not consider that the whole of the new building is an annexe.  Whilst it was the primary contention of both parties that the whole of the new building should be considered as one, rather than considering the different elements separately, neither party suggested that it would be wrong for the Tribunal to look at the individual elements as separate annexes.

37.	In considering the other elements, we find that the new classrooms do not comply with the requirements of an annexe, even though the main access is via the far end of the corridor which extends past the existing classrooms and past the Ellicock room, and therefore is not via the main building, and the access to the main building is not via those classrooms. We consider that they are not capable of functioning independently because there are no facilities there and anybody seeking to use them for a function other than in conjunction with the existing building, would have to use the toilets in the main building.  This follows from our finding that the whole of the new building cannot be considered as an annexe because of the degree of demolition of the existing building to make way for the new structure and the overlapping that exists.  The toilets which would be available for use by users of the Ellicock room are the ones adjacent to the new kitchen in the area we have held to be an enlargement of the existing building.

38.	The hall does have its own separate entrance, although it may also be accessed from the old building or, as we have found, from the enlargement to the old building.  It can be totally isolated from the old building and it has its own facilities.  It is visually distinct from the old building, albeit it is in the same vernacular as the Ellicock room and the new classrooms. It is capable of functioning entirely independently from any of the other part of the new or the old building.  The fact that it is used by the school as a hall is not of itself fatal to its being an annexe.  We accept Mr Evans’ submission that it is not the use to which they are put that is the relevant consideration but how it is capable of being used.  We ignore the fact that the hall shares a single source of heat with the existing building, paragraph 3.2.8 of Notice 708 making clear that shared services should be ignored when considering independent function.  The hall is to one side of the existing building, and the extent of its abutment to the kitchen and the Ellicock room is limited.  It does not have any walls abutting the pre-existing building.  In all the circumstances, we find that the main hall is an annexe. As stated above, the Commissioners have conceded that it is used for a relevant charitable purpose, and we find that it is capable of functioning independently from the existing building and the main access to the hall is not via the existing building, nor is the main access to the existing building via the hall.  

39.	With regard to the playgroup, it was conceded by the Commissioners that it was capable of functioning independently and that it was used for a relevant charitable purpose, the only issue is therefore whether we find it to be an annexe.  We have no hesitation in stating that we do so find.  It has no physical connection with the existing building, and although it is connected to the main hall, it is capable of being completely isolated from that building.  It is to one side of the old building and, as with the main hall, is visually totally distinct from it.  It is not used at all by the school, and functions entirely independently of it.  

40.	In all the circumstances therefore this appeal is allowed to the extent that we find that both the hall and the playgroup are annexes.  It is dismissed with regard to the rest of the building.  Liberty to apply with regard to the issue of costs.

MISS J C GORT
CHAIRMAN

RELEASED: 21 November 2007

		            RE-RELEASED: 14 December 2007
LON 2005/0290