Town and country planning – Listed building consent – Enforcement notice – Appellant appealing against refusal of retrospective listed building consent for export of listed items – Inspector upholding decision – Appellant appealing – Whether inspector entitled to go behind fact that relevant items appeared on list as listed building – Whether inspector erring in law – Appeal dismissed
The appellant inherited a Grade II listed building known as Idlicote House in 1993, which included within its curtilage two early 18th century lead urns and their limestone pedestals (the items). The house had been listed in 1966 but the urns and pedestals were listed later (in 1986). The owner sold (and exported) the items in 2009, unaware of their status. The second respondent local authority refused a retrospective application for listed building consent to remove the urns and piers and issued a listed building enforcement notice for their reinstatement.
The Appellant appealed to the first respondent secretary of state against the refusal of listed building consent and the enforcement notice on several grounds, including that the items were not “buildings” so that listed building consent was not required and no enforcement action could be taken in respect of them. An inspector appointed by the first respondent dismissed the appeal concluding that he could not question the merits of the 1986 listing decision and the urns and piers were “buildings” under the Planning (Listed Buildings and Conservation Areas) Act 1990; that both the concepts of property law and the criteria set out in Skerrits of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions (No 2) [2000] EWCA Civ 5569; [2000] PLR 102 were irrelevant for the purposes of considering whether items were buildings; and that the appellant’s application for listed building consent was invalid for failing to state to where the items were being removed.
The appellant challenged those findings under sections 63 and 65 of the 1990 Act, raising identical issues. The judge dismissed both the application and the appeal: [2017] EWHC 2378 (Admin). The appellant appealed. It was accepted that the failure to state where the items had been moved to did not invalidate the application but the inspector’s error in that regard was held to be immaterial.
Held: The appeal was dismissed.
(1) The wording of the 1990 Act made it clear that, for the purposes of applications for listed building consent and enforcement, being on the list was determinative of the protected status of the subject matter as a listed building. Section 1(5) of the 1990 Act defined “listed building” as “a building which is for the time being included in a list compiled or approved by the secretary of state”. It was particularly noteworthy that the power of the secretary of state (and an inspector in his shoes), on an appeal to de-list, did not allow for the quashing of a listing, only for forward-looking de-listing. Moreover, the grounds of appeal set out in section 39(1) expressly enabled an appellant to raise issues concerning the merits of listing but not the validity of listing. If Parliament had intended an appellant to be able to challenge the validity of the listing, it would have made that clear. That conclusion was supported by the provenance of the relevant current provisions, including section 30(6) the Town and Country Planning Act 1947, which identified buildings that were potentially the subject of listed buildings protection so long as they were included in any list compiled or approved under that section. There was no reason to suppose that the Parliamentary intention as regards that means of identification had changed. Accordingly, the inspector had not erred in considering that he could not question the validity of the listing of the items as listed buildings: Newbury District Council v Secretary of State for the Environment [1981] AC 578, Wandsworth London Borough Council v Winder (No 1) [1985] AC 461, Boddington v British Transport Police [1999] 2 AC 143 and Earthline Ltd v Secretary of State for Transport, Local Government and the Regions [2002] EWCA Civ 1599; [2002] 4 PLR 94 considered.
(2) There were three distinct ways in which something might qualify as a “listed building” under section 1(5) of the 1990 Act. The first was by being included on the statutory list maintained by the secretary of state, under the main text of the section. The second was by being an object or structure fixed to a building which was on the list under the first deeming provision (a) in the section. The third was by being an object or structure which lay within the curtilage of a building which was on the list and had done so since 1 July 1948 under the second deeming provision (b) of the section. In this case, from 1986, the items were included on the statutory list in their own right, under the main text of section 1(5), not under either of the deeming provisions (a) or (b): they were listed buildings in their own right, and not simply by virtue of being fixed to a listed building or because they fell within the curtilage of such a building. The grounds of appeal concerning the relevance of property law concepts and the Skerritt criteria therefore necessarily fell since the items were listed buildings, the validity of the listing being a matter which could not be challenged before the inspector.
(3) The inspector had dealt with the merits of the case in some detail and with some care. In short, the items had been removed, sold and their whereabouts were unknown. As a consequence, their settings as listed buildings had been “completely lost or undone” and their special architectural and historic features had been put at risk. The inspector considered that the harm to those assets could only be described as substantial, and there were no evidenced public benefits from their removal. The judge clearly had legitimate and proper grounds for concluding, as he did, that that analysis and conclusion on the merits by the inspector had not been materially affected by the identified legal error.
Richard Harwood QC (instructed by Shakespeare Martineau) appeared for the appellant; Guy Williams (instructed by the Government Legal Department) appeared for the first respondent; The second respondent did not appear and was not represented.
Eileen O’Grady, barrister
