Can you see the join? The Supreme Court gives judgment in the ‘Urns’ case

May 21, 2020

By Peter Dixon

The Issues

In 1986 a pair of not so little 18^th century lead urns and their supporting piers were designated as listed buildings. At the time the items, which had originally been installed as part of the designed landscape of Wrest Park in Bedfordshire, had come to rest in the gardens at Idlicote House in Warwickshire, where according to the Supreme Court, no alterations had been made to accommodate them and they were free-standing.

In 2009 they were sold at auction and, apparently, removed from the United Kingdom.  Some five years later, in 2014, the local planning authority (‘LPA’) became aware that the items had been removed and, in an exchange of correspondence with the former owner, threatened enforcement action because there had been no prior application for listed building consent.  The former owner made a retrospective application, which was refused.  The LPA then issued a listed building enforcement notice requiring the reinstatement of the items.  The former owner appealed against the notice on various grounds, one of which was that items were not ‘buildings’ for the purposes of the Planning (Listed Buildings and Conservation Areas) Act 1990 (‘the Listed Buildings Act’).

The Inspector appointed to determine the appeal concluded that he had no jurisdiction to consider that question on a listed building enforcement appeal.  That view was upheld in subsequent challenges to the appeal decision in the High Court ([2017] EWHC 2378 (Admin)) and Court of Appeal ([2018] EWCA Civ 2619).  The matter made its way to the Supreme Court where the two agreed issues were:

• Whether an inspector considering a listed building enforcement appeal is permitted to consider whether or not something on the statutory list is a ‘building’; and
• What criteria are relevant in determining whether an item appearing in its own right in the statutory list is a ‘building’ – concepts of property law (the extent and purpose of annexation) or the criteria in Skerrits of Nottingham Ltd v SoS for Environment, Transport and the Regions (No 2) [2000] JPL 1025.

The Supreme Court gave judgment on 20 May (click here to read the full judgment).

Jurisdiction

It appears to have been common ground between the parties that individuals affected by legal measures should have a fair opportunity to challenge them. At issue was whether the opportunity to challenge the identification of the Urns as buildings had been when the listing decision was taken (when the validity of listing could have challenged by judicial review) or whether the issue could be raised in an appeal against a listed building enforcement notice many years after the listing decision?

Giving the leading judgment (with which all the other justices agreed) Lord Carnwath noted that in the context of planning enforcement the House of Lords had held in R v Wicks [1998] AC 92 that the statutory grounds of appeal should extend to “every aspect of the merits” of the enforcement action and that it was hard to see why it should be any different in the case of a listed building enforcement appeal where the underlying enforcement notice carried the same criminal sanction. The question of whether or not a particular structure is a ‘building’ is plainly a relevant one, since the statutory definition of listed building identifies two essential elements: that the structure is a ‘building’ and that it is included in the ‘list’.  Lord Carnwath continued:

“Short of a specific provision that the listing is to be treated as ‘conclusive’ for such purposes, there is no reason to displace the ordinary presumption that the accused may raise any relevant defence.”

Were it to be held on appeal that a particular structure was not a building – and therefore that there had been no contravention of listed building control – it would be open to the Secretary of State to exercise the statutory power to remove the structure from the list.

It was therefore held that in determining a listed building enforcement appeal it is open to the decision maker to go behind the list to consider whether or not the structure concerned is a ‘building’ for the purposes of the legislation.

‘Building’

The Listed Buildings Act does not contain its own definition of ‘building’ but adopts the basic definition in the Town and Country Planning Act 1990 which encompasses a ‘structure’ or ‘erection’.  Section 1(1) of the Listed Buildings Act provides that a ‘listed building’ is a building included in a relevant list before adding that ‘any object or structure fixed to the building’ as well as ‘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 1 July 1948’ shall be treated as part of the building (Lord Carnwath termed the latter the ‘extended definition’).

The Court found that the words used in the extended definition were clearly designed to tie the extended definition to real property concepts under the common law and that on that basis, on reviewing the authorities concerned with ornamental items resting by their own weight on land, it was apparent that such items could be fixtures – and so part of the land for the purposes of Section 1(1) of the Listed Buildings Act – so long as they formed part of the overall design of the property.  Conversely:

“…a statue or other ornamental object, which is neither physically attached to the land, nor directly related to the design of the relevant listed building and its setting, cannot be treated as a curtilage structure and so part of the building within the extended definition.” 

Turning to whether such a structure can nonetheless be a ‘building’ under the basic definition – and so capable of listing in its own right – the Court found that whilst real property concepts were plainly engaged under the extended definition, there was nothing to import them into the basic definition and for that purpose the approach Skerritts of Nottingham Ltd was to be preferred not least because it was formulated in relation to the same statutory definition.  Under that approach the three factors to be considered are size, permanence and degree of physical attachment to the land of the object in question.

Overall

The Court allowed the appeal and remitted the enforcement notice appeal to the Secretary of State to be redetermined, being unable to express anything more than a provisional view about the merits of the Urns as ‘buildings’ according to the Skerritt criteria. However, noting that the practicability of restoring the Urns to their previous location was now uncertain, the Court added that:

“…this court’s formal order for remittal should not prevent the respondents from giving serious consideration to whether in all the circumstances it is fair to [the former owner] or expedient in the public interest to pursue this particular enforcement process further.”

 

A former Chartered Surveyor, Peter transferred to the Bar in 2013 after more than 25 years’ in practice in planning and development. Since coming to the Bar, he has obtained experience across a broader range of property and commercial litigation including contract disputes, banking, insolvency, employment and professional negligence.