Is It A Listed Building? No Statuary Right Of Appeal

Or, before you sell your garden ornaments best to check that they aren’t listed buildings.

I missed the 50th anniversary, on 25 October 2018, of the enactment of the Town and Country Planning Act 1968. Part V of the Act introduced our modern system of listed buildings, and the prohibition on the demolition of any listed building, or its alteration/extension in any manner that would affect its character as a building of special architectural or historic interest, without listed building consent. The background to the provisions, which replaced a much weaker system of building preservation notices, is well described in an Institute of Historic Building Conservation blog post.

I was only reminded of the anniversary by an interesting ruling by the Court of Appeal, Dill v Secretary of State (Court of Appeal, 26 November 2018).

The facts are odd. Two early 18th century limestone piers, each surmounted by a lead urn, were moved to Idlicote House, a grade II listed building, in 1973 by the appellant’s father. The two sets of piers and urns were separately grade II listed in 1986. The appellant came into ownership of Idlicote House on 1993, didn’t appreciate that the items were listed and sold them abroad in 2009 for £55,000. He does not know where they are now. Stratford-On-Avon District Council found about this in 2014. Correspondence ensued. The appellant made an application for retrospective listed building consent to remove the items, which was refused in 2016. The council issued a listed building enforcement notice requiring their reinstatement and the appellant appealed against both the refusal and the notice.

An inspector dismissed the appeals and in so doing rejected submissions that it was open to him to conclude that they were not listed buildings. The decision was challenged and Singh J agreed with the inspector at first instance.

Singh J’s judgment (28 September 2017) contains some interesting additional factual context (as well as usefully quoting from most of the inspector’s report). These items had previously been at four other country houses before being placed at Idlicote House:

The items were originally at Wrest Park in Bedfordshire. In 1939 Mr J G Murray sold Wrest Park and took various items of statuary, including these items, with him to Coles Park, Buntingford in Hertfordshire. In 1954-5, following the death of Mr Murray, the estate was left to a trust, with his grandson, Major R P G Dill, being a lifetime beneficiary. In 1955-6, under Major Dill, Coles Park was sold and the items went with him to the Dower House, Buntingford. Major Dill sold Dower House in 1962 and moved to Badgers Farm, Idlicote. Again the items went with him. He positioned them at Badgers Farm. The farmhouse at Badgers Farm was listed in 1966 but the list description makes no mention of the items.

In 1973 Major Dill sold Badgers Farm and bought Idlicote House. These items followed him. These two items were positioned on either side of a path in the gardens which had served as the front drive to the house since the 1820s. No alteration was made to the garden design to accommodate the items.”

Back to the Court of Appeal. The judgment of Lord Justice Hickinbottom goes through the statutory regime, noting that “building” isn’t defined in the Listed Buildings Act but rather in the Town and Country Planning Act 1990. It “includes any structure or erection, and any part of a building, as so defined, but does not include plant and machinery comprised within a building“.

Hickinbottom LJ agrees with the inspector and Singh J: the decision-maker cannot determine that something on the list is not in fact a building. The list is determinative. Whilst the question as to whether something is a building does involve questions as to the purpose and degree of annexation to the land or property, such issues eg as to the application of property law concepts (see London Borough of Tower Hamlets v London Borough of Bromley (Norris J, 8 July 2015) – the Henry Moore’s Old Flo statue case) or the approach taken to what was part of a building in other rating and planning cases (eg see Skerrits of Nottingham Limited v Secretary of State (Court of Appeal, 22 March 2000) – marquee in grounds of listed building) were not relevant here. He separates out the three ways in which something may qualify as a listed building:

⁃ by being listed in its own right, as here.

⁃ by being an object or structure fixed to a listed building.

⁃ by being an object or structure which lies within the curtilage of a listed building.

So, Mr Dill now has a problem. How to comply with a listed building enforcement notice, and potential criminal sanctions, when no one knows where in the world these objects now are.

The case is a reminder of a couple of things:

⁃ The absence of a time limit for service of listed building enforcement notices, which when taken with the criminal offence arising from doing works without listed building consent, leads to complications for those of us carrying out legal due diligence in relation to transactions concerning listed buildings.

⁃ The curiosity of the definition of “building” which enables a wide range of structures or erections to become “listed buildings“.

By coincidence DCMS on 19 November 2018 updated its principles for selection of listed buildings. More on that in due course perhaps (particularly on the implications for modern buildings) but in the meantime the advice in paragraph 5 is relevant to this blog post:

For the purposes of listing, a ‘building’ includes any structure or erection and a ‘listed building’ includes any object or structure: (a) fixed to it; or (b) within its curtilage which, although not fixed to it, forms part of the land and has done so since before 1st July 1948, unless the list entry expressly excludes such things. In some cases, such as for works of art or sculptures, it will be necessary to consider the degree and purpose of annexation to the land or building to determine whether it may be listed under the 1990 Act.

The Dill case reminds us that in practice the stage to argue that something is not a “building” is obviously when listing is being considered, not when you are facing enforcement or making a listed building consent application. Surely listing of such itinerant objects, with no historical connection with Idlicote House, would not have been an obvious procedure to follow? Of course applications for de-listing can also be made when it is considered that the listing was in error in some way, but the Historic England guidance warns that applications for de-listing will not normally be considered when enforcement is in hand – so perhaps not an easy route for Mr Dill.

Simon Ricketts, 1 December 2018

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