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 allowed
In 1993, the appellant inherited a Grade II listed building known as Idlicote House in Wrest Park, Bedfordshire, 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 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 contending, amongst other things, 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; He took the view that the status of the items as “buildings” was established by the listing; he could not reconsider the issue; and the appellant’s application for listed building consent was invalid for failing to state to where the items were being removed.
The appellant appealed against those findings under sections 63 and 65 of the 1990 Act. The judge dismissed both the application and the appeal: [2017] EWHC 2378 (Admin). The Court of Appeal dismissed the appellant’s appeal against that decision: [2018] EWCA Civ 2619; [2018] PLSCS 205. Both courts held that listing was conclusive of the items being “buildings”. The appellant appealed.
Held: The appeal was allowed.
(1) Individuals affected by legal measures should have a fair opportunity to challenge those measures and to vindicate their right in court proceedings. There was a strong presumption that parliament would not legislate to prevent individuals from doing so. That principle had to be read in the context of the particular statutory scheme. Fairness required that the grounds of appeal should extend to every aspect of the merits of enforcement action in planning cases and it was hard to see why it should be any different in the context of a listed building enforcement notice. In the context that contravention of listed building control was a criminal offence, whether or not an enforcement notice was served, the starting point had to be the presumption that the accused could raise any grounds relating to the lawfulness of the proceedings on which the prosecution was based.
(2) Section 1(5) of the 1990 Act defined a listed building as “a building which is … included in [the] list …”. It included any object or structure fixed to the building; and any object or structure within the curtilage of the building which, although not fixed to the building, formed part of the land and had done so since before 1 July 1948. Thus, there were two essential elements: it had to be both a “building” and “included in [the] list …”. If it was not a building, the mere inclusion in the list would not make it so. Notably there was no equivalent to the exclusivity provision of section 64.
There was nothing to prevent an accused arguing that the item on the list was not a building and so not within the definition. There was no reason why the same approach could not be taken in an appeal under section 39. If, on the facts, the relevant item was not a building, the secretary of state had the power to remove the item from the list. The enforcement appeal would be remitted to the respondent for redetermination.
(3) In determining whether an object or structure might qualify as a listed building in its own right, the Court of Appeal in Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions (No 2) [2000] PLR 102 had adopted the three-fold, albeit imprecise, test which was treated as of general application in the planning context: that involved considering size, permanence and degree of physical attachment.
For the purposes of listing, parliament had used the general concepts of “erection” and “structure”, rather than more precise and specific terms, and those were applicable across a very wide range of cases. The application of the definition required an evaluative judgment. In deciding how to categorise an object of artistic significance in the listed building context, there was a clear move away from real property analogies. Real property concepts were relevant to the extended definition, but there was nothing to import them into the basic definition of building. The mere fact that something had been “erected” on land was not sufficient to make it a building. The degree of permanence of the location of the item on the site was significant.
(4) In the present case, it was not suggested that the items would have qualified for protection as curtilage structures within the extended definition. Whatever might have been the position had they remained in place, the vases and their piers did not fall to be treated as part of the listed building. Not only had they been placed on the land after July 1948, but also, being freely movable, they were not related in any relevant way to the design of the particular listed building and its setting. The applicable real property tests were not satisfied.
The Skerritts criteria for identifying a building were also relevant in the listed building context. It was not possible or appropriate to reach a concluded view on how those tests should be applied; not only did the court not have a full view of the facts, but the issue also involved questions of factual evaluation best dealt with by a planning inspector on the renewed appeal.
Richard Harwood QC and Catherine Dobson (instructed by Shakespeare Martineau LLP, of Birmingham) appeared for the appellant; David Elvin QC and Guy Williams (instructed by the Government Legal Department) appeared for the first respondent; John Hunter (instructed by Stratford-on-Avon District Council) appeared for the second respondent.
Eileen O’Grady, barrister
