United Kingdom Supreme Court

Factual background

“Pier surmounted by urn C18. Limestone and lead. Square pier with panelled sides, moulded stone plinth and chamfered cornices. Lead urn is decorated with high-relief cherub’s heads and flame finial.”

The listing decision and paperwork on which it was based have not been found despite enquiries. Although notice of the listing was required to be given to the owner or occupier by the local planning authority, there appears to be no extant record of such a notice. However, in January1987 (six months after listing - the delay has not been explained) the items were entered on the local land charges register. The present owner, Mr Marcus Dill, acquired the house and the items in 1993. He was not aware of the listing of the items, and does not understand that his father, Major Dill, was aware of it.

“The piers … consist of limestone pedestals of a slab rather than solid construction. Consequently they were not especially heavy. Together a pier and finial was 274cm high ...

At Idlicote House the pedestals were resting on concrete slabs which were on the ground. They were not fixed to the slabs. The finials were also sitting on the pedestals without any attachment. The top of the piers can be removed. When they were taken from Idlicote House the finials and the top of the piers were lifted together and then the remaining part of each pier lifted. The items were lifted onto a Hiab lorry by its crane.”

Procedural history

“Many garden items (as well as structures such as buildings relocated in open air museums), including statues and urns have been listed after they have been moved because they still qualify under that definition.”

i)                   Whether an inspector considering an appeal under section 20 or section 39 of the Listed Buildings Act can consider whether or not something on that list is a “building”.

“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.”

Subsection (5A) enables the list to indicate that particular objects or structures mentioned in subsection (5)(a) or (b) are “not to be treated as part of the building for the purposes of this Act”; or that any part or feature of the building is not of special architectural or historic interest.

“‘Building’ includes any structure or erection, and any part of a building, as so defined, but does not include plant or machinery comprised in a building.”

“… shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.”

“The notice of appeal may include as the ground or one of the grounds of the appeal a claim that the building is not of special architectural or historic interest and ought to be removed from any list compiled or approved by the Secretary of State under section 1.”

By section 22(1), on an appeal the Secretary of State may deal with the application as if it had been made to him in the first instance, and may exercise his power under section 1 to amend any list compiled under section 1 by removing from it the building to which the appeal relates. Section 20 appeals may be determined by a person appointed by the Secretary of State (in other words a planning inspector) who has the same powers as the Secretary of State. Section 62 provides:

“(1)     Except as provided by section 63, the validity of [a decision on an appeal under section 20] … shall not be questioned in any legal proceedings whatsoever.”

Section 63(1) provides for a challenge by way of application to the High Court on legal grounds.

“(a)     that the building is not of special architectural or historic interest;

(b)       that the matters alleged to constitute a contravention of section 9(1) … have not occurred;

(c)       that those matters (if they occurred) do not constitute such a contravention;

(d)       …;

(e)       that listed building consent ought to be granted for the works, or that any relevant condition of such consent which has been granted ought to be discharged, or different conditions substituted; …”

“On the determination of an appeal the Secretary of State may -

(a)       grant listed building consent for the works to which the listed building enforcement notice relates or for part only of those works;

(b)       …;

(c)       if he thinks fit, exercise his power under section 1 to amend any list compiled or approved under that section by removing from it the building to which the appeal relates. …”

Section 64 provides:

“The validity of a listed building enforcement notice shall not, except by way of an appeal under section 39, be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought.”

Section 65 gives a right to appeal to the High Court on legal grounds against a decision of the Secretary of State or inspector on an enforcement appeal under section 39.

The first issue - is designation as a listed building conclusive?

“I do not think that in practice hardship will be caused by requiring the residual grounds to be raised in judicial review proceedings. The statutory grounds of appeal are so wide that they include every aspect of the merits of the decision to serve an enforcement notice. The residual grounds will in practice be needed only for the rare case in which enforcement is objectively justifiable but the decision that service of the notice is ‘expedient’… is vitiated by some impropriety. As Keene J said in the Court of Appeal, the owner has been served with the notice and knows that he has to challenge it or comply with it. His position is quite different from that of a person who has contravened a byelaw, who may not have heard of the byelaw until he contravened it.” (Emphasis added)

If in that context fairness requires that the grounds of appeal should extend to “every aspect of the merits” of the enforcement action in planning cases, it is hard to see why it should be any different in the context of a listed building enforcement notice. In particular, as will appear from the cases considered later in this judgment, whether a particular structure constitutes a “building”, and its erection a “building operation”, is an issue which may undoubtedly be raised in the context of a planning enforcement appeal. As those cases show, it may raise difficult issues of factual judgement, which are much more appropriate for a planning inspector than for the High Court in judicial review. No convincing reason was offered as to why the question whether something qualifies as a “building” should be treated in a different way in the listed building context. One advantage of allowing these issues to be dealt with through the planning appeal route is that it enables the inspectorate, with appropriate legal advice, to develop workable criteria on a case-by-case basis.

The second issue - were they buildings?

Garden and Park Structures

“This selection guide is devoted to individual built structures found in gardens and parks, rather than the designed landscapes themselves … All designed landscapes are likely to contain buildings and other hard landscaping features such as balustraded terraces that will often make a positive contribution to the overall character of the place. This selection guide helps identify which structures meet the test of special interest for listing.” (p 1)

i)                   Wrest Park itself, as it was in the 19th century (p 5), is given as an example of reversion to “the severely formal fashions” of the 17th and earlier 18th centuries:

“with terraces, balustrades, vases, basins and fountains, elaborate steps and gateways, seats, summerhouses, and statuary.”

Some of these latter features, it is said, were “industrially produced, moulded from terracotta, Coade stone, or cast iron”. A photograph shows the restored parterre at Wrest Park, with formal planting and some large classical statues, which appear to be an intrinsic part of the design. We were informed by Mr Elvin that these are not fixed in place other than by their own weight, and are separately listed as “buildings” in their own right. On the same page, the guide also refers to raised terraces, which were sometimes “decorated with elaborate flower urns”. At p 10 the guide refers to statuary, urns and other features such as sundials and astronomical devices which adorned formal gardens; and at p 11 it states that even when these have been moved from elsewhere, pre-1850 examples will generally merit designation.

ii)                A more recent item is shown by a photograph of Henry Moore’s Reclining Woman (1947), at Dartington Hall, a large stone sculpture resting on a substantial stone base, said to be listed Grade II (p 7).

iii)              Perhaps the most unusual example is the group of -

“27 life-size Crystal Palace dinosaurs (listed Grade I), survivors from an exceptional High Victorian pleasure ground created in the early 1850s, [which] show the singularity park features could sometimes attain.” (p 18)

Identifying a “building” - legislation and case law

“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 1 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.” (para 6)

This acknowledges (rightly as will be seen) the relevance of “the degree and purpose of annexation” in considering whether a work of art or sculpture forms “part of the land” under the extended definition. But the second sentence might be taken to confuse that issue, relevant to whether the sculpture is to be treated as part of a building already on the list, with the distinct question whether the sculpture itself “may be listed under the 1990 Act” as a separate entry. This depends upon whether the sculpture constitutes a “building”, in the sense of being a structure or erection within the statutory definition, in relation to which the degree and purpose of annexation to the land may be relevant factors but are not necessarily conclusive.

Garden objects or structures under the extended definition

“It is not, in my judgment, open to serious doubt that these items were all fixed and annexed in their places as part of the overall and permanent architectural scheme and intended in every sense to be annexed to the freehold …” (p 217)

In Debenhams plc v Westminster City Council [1987] AC 396, 408-409 Lord Mackay of Clashfern confirmed that the word “fixed” in the extended definition was to have “the same connotation as in the law of fixtures … so that any object or structure fixed to a building should be treated as part of it”, thereby “put[ting] beyond question the matter that was decided by Russell LJ in the Corthorn case …”.

“Statues, figures, vases and stone garden seats have been held to become part of the land because they are essentially part of the design of the house and grounds, even though standing by their own weight.”

This was supported by a footnote reference to D’Eyncourt v Gregory (1866) LR 3 Eq 382, but with a cautionary note: “the authority of this decision is not great; see De Falbe [1901] 1 Ch 523, at 531, 532”.

“The general range of things in view consists of things built or constructed. I think, in addition to coming within this general range, the things in question must, in relation to the hereditament, answer the description of buildings or structures, or, at all events, be in the nature of buildings or structures. That suggests built or constructed things of substantial size: I think of such size that they either have been in fact, or would normally be, built or constructed on the hereditament as opposed to being brought on to the hereditament ready made. It further suggests some degree of permanence in relation to the hereditament, ie, things which once installed on the hereditament would normally remain in situ and only be removed by a process amounting to pulling down or taking to pieces. I do not, however, mean to suggest that size is necessarily a conclusive test in all cases, or that a thing is necessarily removed from the category of buildings or structures or things in the nature of buildings or structures, because by some feat of engineering or navigation it is brought to the hereditament in one piece. ... The question whether a thing is or is not physically attached to the hereditament is, I think, certainly a relevant consideration, but I cannot regard the fact that it is not so attached as being in any way conclusive against its being a building or structure or in the nature of a building or structure. ... Nor can I regard the fact that a thing has a limited degree of motion in use, either in relation to the hereditament or as between different parts of itself, necessarily prevents it from being a structure or in the nature of a structure, if it otherwise possesses the characteristics of such.”

As Bridge J held in Barvis at pp 716-717, in a judgment with which Lord Parker CJ and Widgery LJ agreed, if one substitutes throughout that passage the phrase “structure or erection” for the phrase “structure or in the nature of a structure”, this guidance “is fully applicable to the considerations which govern the application of the definition in the Town and Country Planning Act 1962” (ie in section 221 of that Act, now re-enacted as section 336 of the 1990 Act).

“I should want a great deal of persuading that the erection of it had not amounted to a building or other operation. ‘Building’ includes any structure or erection. If, as a matter of impression, one looks objectively at this enormous crane, it seems to me impossible to say that it did not amount to a structure or erection.”

He found nothing in the statutory context to displace that impression:

“I would be very surprised if the planning legislation did not give to a planning authority the opportunity to control this kind of operation, and, in my judgment, this crane was not the less a structure or erection by reason of its limited degree of mobility on its rails on the site, nor by reason of the circumstance that at some future date, uncertain when it was erected, the appellants contemplated that it would be dismantled and the rails and beams broken out of their concrete beds and that it would be transported in pieces to other sites where it would be re-erected for use in contract work.” (pp 715-716)

That view was confirmed by reference to the passage cited above from the judgment of Jenkins J in the Cardiff case. Bridge J distinguished a previous planning case, Cheshire County Council v Woodward [1962] 2 QB 126, DC, in which it was held that the Minister of Housing and Local Government had not erred in finding that the placing on a site of a mobile hopper and a mobile conveyancer, some 16 to 20 feet high, did not amount to development.

“The marquee is a substantial object which is about 40m long, including the additions, and some 17m wide and the ridge height is around 5m … There is no direct evidence before me of the assembly method or period, but from my inspection, I consider that it took several days with a number of erectors and amounted to a sizable and protracted event. I imagine that its dismantling follows much the same process. It is assembled on site, not delivered ready made. I do not regard its considerable bulk to be de minimis in relation to planning controls.”

It was sitting on “square metal plates which are spiked to the soil beneath” and appeared to be “held in place by its own considerable weight, the internal bracing and the ground spikes”. The timber floor was supported by metal ground beams resting on the land. He concluded:

“I conclude that, as a matter fact and degree, the marquee, due to its ample dimensions, its permanent rather than fleeting character and the secure nature of its anchorage, is a structure which is to be regarded as a building for planning purposes …”

The main issue in the Court of Appeal was whether the marquee had a sufficient degree of permanence to qualify as a building. The court held that the inspector had been entitled to arrive at the conclusion that he did.

The present case

Conclusion